Thursday, December 25, 2014

Auld Lang Syne: European Courts and the Right to Be Forgotten

by Nomad

Censorship One of Internet's biggest stories of the year went practically unnoticed in the American press. A European court ordered Google to provide a means for individuals to control what has been written online about them.
At least, the ruling says, search engines cannot help search engine users find that information.


The desire to be remembered is, generally speaking, something most of us aspire to. However, when it comes to our online footprint, there are a lot of people who would strongly prefer to be forgotten. Although the event cannot entirely be erased from the vast public forum known as the Net, then at least we can try to separate our names (and our reputations) from the information. 

Should that photo of you when you weighed as much as a Volkswagen be a burden you must carry forever? Must a teenage shoplifter who has changed her ways in adulthood have the details of her pop up every time she looks for a new job? Should an admitted wife-beater have one incident ruin the rest of his life? What about a convicted bank embezzler who has served his time, does he have the right to be forgotten?

Making good use of a seasonal reference, we might ask:
Should old acquaintance be forgot, and never brought to mind?

The Right to be Forgotten 
In spring the  European Court of Justice controversially declared that in some cases, people have a right to be forgotten.    

In May, the courts ruled the search engine Google must remove links to websites that include content that is  is "inaccurate, inadequate, irrelevant or  excessive." The ruling was based on EU’s 1995 Data Protection Directive. That directive states that individuals have the right - under certain conditions - to protect their own data. The courts applied that direction in a new way- to give citizens the right to demand that search engines to remove links with personal information.  

The court also clarified that the right to be forgotten is not absolute. In order to prevent censorship, the right always require a  balance against other fundamental rights, such as the freedom of expression and of the media. Nevertheless, the decision had a lot of freedom of the press and free speech whether the courts had really thought this complex debate through.

As a result of the decision search engine companies will be mandated to examine  deletion requests from individuals on a case by case basis. The company will assess the information based on "its sensitivity for the individual's private life and the interest of the public in having access to that information." In addition, the assessment must also be based on "the role of the person requesting the deletion plays in the public life.

Actually, the search doesn't actually delete anything.  The content remains online. The search engine must simply break "the links between searches on an individual's name and the offending results." It's an important point that is often lost in the debate.

According to the European court ruling, an internet search engine must consider requests from individuals to remove links "to freely accessible web pages resulting from a search on their name. " In this way, a person can distance themselves from online content or any links that might refer to them.  

So, for example, example if I search for a specific individual in a Google from a European country, the disputed content may not appear in the results. The event can be searched and found but not through the individual alone. (That's how I understood it to work, at least.)

The Erasing Begins
Since May,  thousands of sites have been de-listed or de-linked. (The word "deleted"is not exactly accurate.) Of the 174, 266 request that have been filed for 602,479 links,  Google has removed 352,450 links or 58.5% of the requested search results from across Europe.

As far as the number of removal requests, Germany ranks as the top European country with around 12,000. That's followed by  France, with over 8,400 requests.UK is in third place. 

According to an article in the UKGuardian, Google has approximately a 90% market share of search in Europe, making it the primary focus of the rulings and watchdog attention. Google  has been called a "reluctant participant."

In order to abide by the ruling, Google was obliged to employ a large team of lawyers, engineers and paralegals to review the removal requests. According to one source, the easy cases are handled quickly, but as Google's Global Privacy Council, Peter Fleischer, explained, a more senior group of lawyers and engineers address the more difficult cases. The problem, Fleischer says, lies with the overall vagueness of the court's guidelines.
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The UKGuardian points out that, because the courts have not fully grasped how the Internet functions, the ruling has more holes that a chunk of EU approved Swiss cheese.
If you search any EU Google site for anything resembling a name, you'll see a warning your results may be restricted. Yet, there's an even better workaround which the search giant has left open. If you go to the Google homepage, and look in the bottom right-hand corner, you'll see a link saying "Use Google.com". Do that – or switch to another search engine, such as DuckDuckGo, which has no EU footprint and also doesn't track cookies – and for now, you'll see the full unfiltered results.
Switching to another search engine may soon not be an option. Just this month, search engines Bing and Yahoo joined Google and began acceptting requests for deletion in order to avoid possible legal action. Presumably, in Europe, all search engines will be in compliance or face heavy fines. 

For now the ruling applies only to Google based in EU countries, However, the could be about to change. Joe McNamee, executive director of European digital rights group EDRi, questions why the idea isn't applied to the whole of Google.com. McNamee also points out that reactions to the EU ruling has been plagued with misinformation and a fair amount of hysteria. 
He says:
Both in terms of scale and intrusiveness, these restrictions are hugely less significant than the restrictions that Google voluntarily imposes for copyright and other content.
Critics Speak Out
Protecting individual privacy online is a noble effort to be sure, but as the old saying goes, the road to Hell is paved with good intentions.   

In July, the House of Lords's EU Committee released a report highly critical of the EU's decision, calling in "unworkable and wrong." The report declared that the ruling was based on "outdated" principles. It said:
“We do not believe that individuals should have a right to have links to accurate and lawfully available information about them removed, simply because they do not like what is said."
Critics charge that the vagueness of the court ruling (with its threat of fines) would lead to a chilling effect with search engines leaning toward deletion rather than inclusion.
Guy Vassall-Adams, Matrix Chambers, a UK law firm, writes:
[T]here is an inherent value in the free circulation of information and ideas which the court has completely overlooked.
Vassall-Adams also warns that the court ruling can be expanded to include not only Google and other search engines but, in theory, all websites sharing information with the public.
The ramifications are enormous. Operators of websites in Europe will be drawn into endless arguments with individuals about whether there is a specific public interest in publication of that specific piece of information, even where it is neither private nor prejudicial.
Had the courts considered, he asked, whether it was wise to leave the protection of the public interest in freedom of expression in the hands of large corporations? Instead of taking a  "principled stance," isn' it much more likely for them (and all websites owners) to follow the easiest course and erase information on request, rather than risk running into legal problems? 
Across the Atlantic and around the world other countries will look on us with bemusement as they read information which we are denied. This judgment is profoundly harmful to the operation of the internet and a betrayal of Europe’s great legacy in protecting freedom of expression.
Niko Härting, a German professor and chief editor of Privacy in Germany, has examined the possible problems that the ruling presents.  He writes:
“Privacy by default” will encourage politicians, celebrities and other public figures to put their lawyers on track when they find inconvenient information online. And as the use of a search engine like Google is essential for finding information, the elimination from the results of search engines will provide a convenient and essential tool to suppress information.
Once you begin  letting corporations decide what kind of information is "inaccurate, inadequate, irrelevant or excessive" it opens the doors for all kinds of problems. 
Look at what governments like China or Iran or a dozen other countries have done to the flow of information on the Net. This too was done in the name of protection.
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In America, the Citizens United decision decided that corporations had a right to free speech normally associated with living breathing human beings. Do corporations also the right to be forgotten like individuals?
If the US courts followed the European example, this would open the floodgates for all kinds of complicated legal battles. Could some corporate giant appeal to Google, another corporate giant, to have reputation-damaging online content removed?  

That possible scenario should rightly have all of us worried. 

The Invisible List
Ultimately, critics charge that what the European courts are trying to do amounts to an insidious form of censorship. While the information may still exist, if it is impossible to find that information using a search of the person's name, it might as well not exist at all.  

The Telegraph compiled a list of some of its own newspaper links that Google has de-linked. That list suggests that critics fears were justified in part. For example, among the web newspaper articles Google de-linked:
Some of other Telegraph articles that went missing are instances of public embarrassment. For example requests for deletion came for the story of the vicar that resigned after being seen standing "starkers" in his window, swearing at children and staggering around drunkenly.
Embarrassing true, but is it irrelevant? Which is more important, our right to know or his right to make mistakes?

Here's another example. In August, Google removed a link to a Telegraph story. (Mon Deu! what a spicy-hot story it was.) The newspaper report dealt with a butcher who threatened to send his estranged wife's parents videos of his wife's group sex sessions
The article details the jailing of [redacted], a butcher who was sentenced to two and a half years imprisonment for blackmail and nine months for indecent assault by Judge [redacted] in 2000. At an earlier trial he had been convicted of blackmailing his wife, who was filmed by him during five-in-a-bed sessions during their four-year marriage.
How does this story fit into any of the categories of "inaccurate, inadequate, irrelevant or  excessive."  (Well, maybe excessive, but many court cases tend to be excessive. If we were remove all information that was excessive, tabloids would dry up overnight.) 

For that matter, why should any court cases or law enforcement issues- where the expectation of privacy no longer exists- fall under the so-called "right to be forgotten" at all?  Doesn't the curious public have a right to know what has occurred in its own courts?

When Information Turns to Smoke
Another problem with the ruling is that it is unfairly biased against the Net when compared to print media. This bias in a way reflects the problem with the Net as a suitable platform for journalism. The European "right to be forgotten" could never be imposed on print media for some obvious and practical reasons.

Once something is printed, it is more or less permanent and as soon as it leaves the printer and lands in the public hands, it becomes a record of history. A kind of time capsule for as long as the reader chooses to keep it or as soon as the information is archived. (This is why newspaper archive must be free of charge as part of the public domain.)

Few would claim that newspapers are inherently more accurate than the Internet. The information found in a newspaper can be just as wrong or prejudiced. Inaccurate information (in printed form) can be redacted, updated or corrected but it cannot be removed once it has been delivered. Once printed, the information belongs to the public in a very real sense. For this reason, print media will always be a more dependable record of history.
Even if you use the old editions to line your bird cage.  

(Given the decline of all print media and the rise of the Net, it's somewhat surprising this defense and superiority of newspapers and magazine has not been more strongly advertised.)

As a substitute to print media, this ephemeral and malleable quality of Net information is a dangerous illusion. It is far more easily controlled, as the European Court ruling proves. (But only if we allow it to be.)

Additionally, the now-you-see, now-you-don't character of the Net undermines serious research. For example, if the links for an in-depth and well-referenced investigation are purely Net-based, then the evidence can turn to smoke as it disappears off the net. 
Any research that relies on Internet sources can eventually be reduced to a series of meaningless dead links. 
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The European decision to regulate the free flow of information and to allow some information to be less available presents a major challenge to those who advocate a hands-off approach to the Internet. Who will be in charge of ensuring that the proper balance between private individual's right to be forgotten and the public's right to know?  Governments? Corporations? 
When it comes who we can trust more, that's a tough choice.


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