The Right to be Forgotten

Privacy and the Media in the Digital Age

George Brock

• Publisher: I.B. Tauris
• Year: 2016
• Print ISBN:
  9781784535926
• Edition: 1
• eBook ISBN:
  9781786721129
• Topic: Social Sciences
• Subtopic: Computer Science General
• Index: Social Sciences

The human race now creates, distributes and stores more information than at any other time in history. Frictionless and cheap digital networks circulate information in ways which either authors or subjects are unable to trace or control. Servers store data which can be found on the world wide web years after it has ceased to be accurate or relevant to its original use. These developments have given rise to a movement promoting a 'right to be forgotten': an argument that freedom of expression should be balanced by a right to erase information which affects an individual, under certain conditions. Rights to privacy therefore need extending and strengthening in the digital era. This strand of thinking influenced a significant judgement delivered by the European Court of Justice in May 2014. As a result, the dominant internet search engine in Europe, Google, has been required to remove links to hundreds of thousands of pieces of information on application from individuals who considered their interests harmed. We know very little of how these delinking choices are made.This book looks at the implications of this controversial decision for free expression, journalism and information in the digital public sphere.
Two rights-free speech and privacy-collide in a new way in age of information saturation. Is the judgement a threat to freedom of information and the accuracy of the historical record or the first step in establishing essential new rights in the digital era.

1

Law, Power, and the Hyperlink

Until recently, the English phrase a ‘right to be forgotten’ suggested fiction rather than reality. Fans of the Men In Black films think immediately of the ‘neuralyser’, the pen-shaped device which, when pointed at someone’s head and activated, wipes out memory. Or it might bring to mind Winston Smith, the protagonist of George Orwell’s 1984, whose dreary job as a censor of history involves removing articles no longer thought politically acceptable from back copies of The Times.

In May 2014, arguments erupted over the ‘right to be forgotten’ in real life. The phrase had been written and spoken before then, but very largely in the specialised world of ‘data protection’. The controversy began with a landmark judgment by the European Court of Justice, the highest court in the European Union.

The court decided that the vast, US-based search engine Google was subject to EU data protection law, that it had responsibilities under that law, and that it was required to remove search links when requests from citizens to do so met certain tests. The third of these decisions came instantly to be known as ‘the right to be forgotten’. The name is variously used to cover both the de-indexing (or delisting) of internet search results and the deletion of digital material. The phrase is neither new nor, when applied to de-indexing, wholly accurate. But as a slogan it was an instant and resounding success. That success owed a lot to accumulated anxieties about the potential harm which can be caused by some information stored and searchable on the internet.

The judgment in the case formally known as C-131/12 Google Spain SL and Google Inc v. AEPD and Mario Costeja Gonzalez (and usually known as ‘Google Spain’) was a shock.¹ Google had expected to win the case. Advice to the court from its Advocate-General had recommended that the balance between freedom of speech and privacy should be struck by refusing the request to take the information out of Google’s search index. The court’s decision came as a surprise for another reason: very few people knew much about data protection law and especially about this aspect of it.

The ‘right to be forgotten’ is only one part of data protection but its workings deserve to be much better known and debated. The question of whether the law should require personal information to be delisted by search engines (or deleted altogether) sits at the new, shifting, and disputed border between free speech and privacy in the online world. Battles over privacy have now become struggles over digital information rights. A new dispensation between freedom of information and rights to protect privacy and reputation is being hammered out in courts and political systems across the world. The search for a way to manage this collision of rights did not start with the Google Spain case, but that judgment tilted, polarised and fired up the debate.

Digital technology, by making possible vastly greater creation, storage, and search of information, poses new questions about free speech, privacy, and rights of rectification. Timeless values need to be applied in new contexts. This study examines the origins of, and fallout from, Google Spain and questions whether the balance is being struck in the right place. Any intervention at the junction of journalism, law, and technology should be closely examined and monitored. Journalism also plays a role in public memory. Exactly how much do we want to be able to recall? How do we determine what that is?

Free speech and privacy have been colliding for centuries. Rights which clash often cannot be reconciled; they can only be balanced by reasoning from the facts of a case. The debate over the ‘right to be forgotten’ opens a window on our attempts to adapt long-established values and principles to the online world. It poses questions for law and democracy raised by globalisation and instant communication. The issue is not only the competition of free speech and privacy but of discovery, historical memory, forgetting, the integrity of the public record, the right to know, and forgiveness. We are gradually assembling the conventions, software code and laws of a new public sphere.

The basic questions asked in the Google Spain case were: can Google’s search algorithm cause harm? If so, what should be done? Much of the immediate reaction to the case was overblown: it was not legal authority for the neuralyser or real-life Winston Smiths. The fact that people overreacted to the judgment does not mean that the European Court issued a good decision, nor does it mean that there are no future risks to free speech built into it. The decision in Google Spain will come, I would argue, to be seen as one of the poorest in the court’s history. It makes the best balance between both freedom of speech and of knowledge – fundamental to good journalism – and the protection of privacy harder to achieve.

The judgment stores up trouble for the future by leaving important questions unresolved. A central one, still in dispute at the time of writing, turns on the territorial scope and enforceability of legal rulings about the internet, which by its nature recognises no borders. Regulatory jurisdiction and the transnational flow of information are mismatched. The judges said nothing about how far the right to be forgotten should reach. Google interpreted the ruling as applying to Europe: links removed were at first visible to those searching on the relevant names from an EU domain (google.co.uk, google.de, google.fr, etc.) but could be found by switching to google.com. European data protection authorities said that restricting the judgment’s effect to Europe would make it too easy to evade. The French authority² began legal action against Google. The company attempted to defuse the stand-off by limiting the workaround. But the French authority insists that any thing less than worldwide effect frustrates enforcement of the court’s wish. Google argues that worldwide application harms the information rights of people who are not EU citizens.³

The right to be forgotten and journalism

Decisions which mark the new frontier between the right to free expression, the right to know, privacy, and data protection have significant implications for journalism. Journalism may pursue long-established aims, but the channels of communication have changed. If we define journalism as the systematic attempt to establish the truth of what matters to society in real time, that aim remains as important as ever in an information-saturated world. There are more providers and sources of information; that multiplies opportunities to learn but it also provides new opportunities to deceive. I have argued elsewhere⁴ that journalism in the twenty-first century faces four ‘core’ tasks: verification, sense-making, eye-witness, and investigation (of wrongdoing or dishonesty). Free expression rights underpin journalism and are pivotal in an additional sense. Journalism sometimes operates at the edge of what is permitted, tolerated, or legal in order to disclose unexpected, concealed, or unwanted facts. This is true outside totalitarian or authoritarian states in which the law’s boundaries are often journalists’ main preoccupations.

Those tasks face new challenges in a world of newly malleable information. In the words of a Dutch court giving judgment in a case about the ‘right to be forgotten’, the internet is ‘an ocean of information’ which can change at any moment.⁵ Previous ideas of free speech underpinning journalism rested on the assumption that a fixed (printed) record should not be suppressed or interfered with. The quantity of recorded information and the ability instantly to change it suggest that long-standing principles must be rethought and applied in different ways. This study outlines one part of that rethinking.

Journalism must also navigate new distribution routes. Access to the consumers of news is now increasingly by search engines and social networks, predominantly Google and Facebook. As one study of this new information power puts it:

Almost accidentally, these global tech giants have taken on civic roles, and with these roles, civic power. This includes the power to enable collective action, the power to communicate news, and the power to influence people’s vote.⁶

From the seventeenth to twentieth centuries, journalism’s move to be independent (above all of the power of the state) altered the governance of democracies. New communications technologies raise the same issues of making power accountable, but in new form in the twenty-first century. Journalists have celebrated the freedoms, diversity, and new opportunities that digital distribution offers but are now looking at the consequences of a major shift in control. This new power also needs to be accountable. To hold power to account, journalism depends on the understanding that neither individuals nor organisations have an unqualified right to control information about themselves. The issue at the heart of the right to be forgotten is how much control should be given to individuals to deal with the unforeseen effects of new technologies.

In the words of James Ball of Buzzfeed (writing in the Guardian):

Whether you are an ardent First Amendment advocate or a passionate believer that networks must do more to police their backyards, the worst of all possible worlds for the flow of information is one in which we shift from the rule of democratic law to one governed by the arbitrary, inconsistent and perhaps kneejerk rulings of a tiny group of large companies.⁷

Digital downside

Most new means of communication, from air travel to the internet, are greeted with uncritical enthusiasm. As risks and disadvantages become more obvious after the initial promise, anxieties emerge. The cheap processors, sensors, and networks which drive digital information at such speed and volume have radically lowered the cost of access to that information. Digital communications are both an engine of opportunity and an unprecedented opportunity for surveillance. New public policies can be tried, new businesses are born, new means of accountability are available. An unprecedented scale of commercial ambition is possible: companies like Google and Facebook aim to persuade the whole population of the planet to become their customers.

These technologies have put publishing power in the hands of a few billion people. We have discovered that they are empowering and disempowering at the same time. Digital devices knit together our private, social, and working lives. Our ability to capture, store, and distribute information has multiplied the amount of information in existence by huge orders of magnitude. One leading estimate of the world’s data reckons that its total quantity doubles every two years. By this count, the world held 4.4 zettabytes in 2013 and will hold 44 zettabytes by 2020.⁸ The more data the world gathers, the further the opportunities extend for comparison and data crunching. Some of this analysis is innovative and useful, but it has a downside. Companies which ‘scrape’ the web dig up old police mugshots and display them online in the hope that people will pay to take them down. There are 16 sensors in the average smartphone. From the data they report, journalism could be adjusted and produced in response to the location, mood, and activity of the phone user. But that data could also rate the user’s sociability or attractiveness to other people. Phones are only the most prominent devices which accumulate data about everyone who uses them. Credit cards and cars do the same.

Stockpiles of data alter our ideas of how we record the life of a society and how the public space functions. Speaking of newspapers, people used the phrase ‘paper of record’ to describe a reliably accurate one. This idea could only take shape in a society with a limited amount of public information which could be thought of as a ‘record’. Major national libraries attempt to capture at regular intervals everything that is on the internet. Is that now the historical record? Even if captured, digital information is malleable, correctable, and can be changed quickly. The abundance of information forces us to think more carefully about what we try to record and what we might reasonably lose, forget, or obscure. The internet offers unprecedented opportunities for voyeurism, exhibitionism, and morning-after regret. The internet is not a library: much of it is not edited in any way, much of it is not aimed at public purpose of any kind, websites are more perishable than books and access to it is given by private companies which are occasionally revealed to be manipulating results for commercial ends.

But the sheer range of information now accessible – and even its random and anarchic, unorganised nature – is part of what many people celebrate about the internet. Search engines and social networks increase the diversity of the news people consume.⁹ Journalists no longer have a monopoly on the production of information which has public value – if they ever did. To protect and preserve information of public value we need to consider carefully the contours and boundaries not only of what helps the public interest now but of what might in the future.

Uncontrolled heterogeneous documents

In their original academic paper which laid out the problems of searching the World Wide Web and how they proposed to solve them, the founders of Google, Sergey Brin and Larry Page, wrote: ‘The web is a vast collection of completely uncontrolled heterogeneous documents’.¹⁰ Here are three recent examples of the fragments of information which different people wanted removed from the vast collection in public circulation or made harder to find.

• In 2009 lawyers for an ex-convict in Germany, Wolfgang Werlé, attempted to remove his name from the English version of Wikipedia. Werlé, with Manfred Lauber, had been convicted in 1993 of the murder of a prominent German actor, Walter Sedlmayr, in a trial which received wide coverage. Werlé’s lawyers cited German privacy law precedents which allow the erasure of a criminal’s name once he or she has served the sentence. Wikipedia and its parent, the Wikimedia Foundation, refused the request and successfully defended that decision in US courts. German courts made judgments in favour of the convicted men but the Constitutional Court overruled these as unreasonable restrictions on free speech. On the German-language Wikipedia.de there is no article on either man, while a search in the same site for ‘Walter Sedlmayr’ still carries the names of his killers. The English-language versions were untouched. The editing of the German site was voluntarily done by Wikipedia’s editors in Germany. The Wikimedia Foundation says that this is down to the respective Wikipedia language ‘communities’. ‘We support both user communities in these decisions’, the Foundation says.¹¹

• In 2006, horrible pictures of a young woman who had been decapitated in a car crash in California began circulating on the internet. The pictures had been routinely taken at the scene by Highway Patrol staff who had later posted them on the web for friends at Halloween. American privacy laws do not cover such a case and First Amendment freedoms limit the ability to take down internet material. A recently founded company, Reputation.com, helped to get the pictures off more than 2,000 websites. But, to the continuing distress of the victim’s family, they could still be found years later.¹²

• In December 2015, a court in Saitama, Japan, ordered Google to remove from their search index reports of the arrest and fine of a man for violating child prostitution and pornography laws. The presiding judge said that convicted criminals were entitled to have their private life respected and their ‘rehabilitation unhindered’. Google is appealing the decision.¹³

These cases are all rea...

Table of contents

• Frontcover
• RISJ CHALLENGES
• Title Page
• Copyright Page
• Contents
• About the Author
• Acknowledgements
• 1. Law, Power, and the Hyperlink
• 2. The Search Society
• 3. Striking the Balance
• 4. Google Spain
• 5. Reactions and Consequences
• 6. Beyond Europe
• 7. New Law: The General Data Protection Regulation
• 8. Alternative Approaches
• 9. Conclusions: The Future
• Notes
• Bibliography
• RISJ/I.B.TAURIS PUBLICATIONS
• Back Cover