Thursday, August 07, 2014

Three myths that need nailed about the right to be forgotten (and one question)





1      Everyone thinks it’s a bad idea, so why hasn’t it gone yet, already.

No they don’t, actually.  Just the people who get to write in mass media. Few people in Europe, and fewer still in the US, realise that a surreptitious propaganda war is being fought around the simple idea that if personal information has been distributed about you, which is erroneous, outdated, incomplete or in some way unreasonably harms you, then  you should have the right to have that information rectified or take down. All that is new about the Google Spain decision is that it extends this right from people or hosts who publish the data, to search engines that link to it.  

But this basic concept worries Google, a lot. Partially because it might cost them money and reduce credibility in the integrity of their database, but mostly on principle : because it implies that states and courts –  and worse still European states and courts – have a right to have a say in regulating Google’s business activities.  And the right to be forgotten also worries the media, a lot : because they fear it might interfere with their freedom to write lucrative stories hostile to the subject of the piece. (This fear is, incidentally, misguided – see myth 2 below).

As a result Google and the media are in an unholy, and very successful, alliance to blacken the name of a simple consumer right. Google feeds scare stories about obviously apalling  take downs they have made to the media (see also myth 3 below) and the media gleefully publicise them. As of yesterday, Wikimedia have also got in on this act, so successfully that one Independent piece manages to suggest that the right to be forgotten is giving apes the right to take down their selfies from Wikipedia.  (Next: dolphins ask for their image to be taken off John West tuna cans.)

So if you honestly think the right to be forgotten is a bad idea, then that is your (sic) right. But don’t believe the hype.

2   Well, whoever’s pushing the opposition to the right to be forgotten, it’s clearly a bad idea because it destroys free speech.
No it doesn’t. The foundational idea of EC data protection law – that you should have the right to control the processing of data about yourself - has been uncontroversial in Europe  since 1995, or earlier.  Imagine that outdated bad debt information still scars your credit record; or you posted a stupid picture of yourself  drunk on Facebook when you were 13 and now it haunts your applications for responsible jobs; or perhaps you shared an intimate picture of yourself with your ex-boyfriend when you were young and in love and now he has posted it on a revenge porn site.
Is it such an unreasonable idea to be able to clear the slate in these circumstances? And is there really a compelling public interest in ephemeral quotidian details about ordinary people, which in a pre-digital world would have long faded into obscurity?

Of course there needs to be a balance with the public interest, if such rights are not to become a whitewash for public figures disguising their shady dealings  or bolstering their PR-created reputations.  But this has never been doubted. The Google Spain decision very clearly reads in an exception that if a data subject played a role in “public life”, then the “preponderant interest of the general public” – their right to know – would win out. The draft Data Protection Regulation, which would reform data protection law and put the right to be forgotten on a clearer, statutory basis goes further, including extensive reference to the need to balance both “freedom of expression” and the “historical, statistical and scientific” record.

Finally, both existing and new law recognise the rights of journalists to report on the public record by giving them exemption from DP law almost entirely. Google argued it was a journalist in the Google Spain case, and failed: but for conventional media , the right to be forgotten is simply not a threat. (Arguably it might even be good for it to incentivise journalists to investigate more using professional skills, and rely on flaky Google and Wikipedia data less.)

3   This can’t be right. If that’s so, why are Google removing links about murderers, gangsters and Muslim brothers of George Osborne?
There are two possible answers to this.

One, it might be hypothesised that Google are occasionally  ignoring the clear instructions of the court to take the public record into account,  and sometimes allowing delinking when they should have refused, so as to generate scare take down stories that discredit the right to be forgotten. On this, like Francis Urquart in House of Cards, I couldn’t possibly comment.

Second, there is a popular misconception that any Google takedown means the content disappears from the Web. This again is a myth that needs shot. First, the content stays up on the original page – only the link disappears.  This is obvious, though often ignored. But, secondly, and rather more subtly, only the link from the name of the person making the take down request to the story that name appears in disappears.  

 So, in one of the much publicised Guardian stories allegedly removed by Google, it turned out the person making the erasure request was not the public figure the article was about (let’s say X), but an obscure person who’d been named in comments (let’s call him/her Y).  You say, but the article still disappears, right?  No. Only if you search on Y, will the link not come up. A journalist searching on X (as is rather more likely)  however would still find the information right there. (And since I can find numerous stories about Adam Osborne’s Muslim  wedding on page 1 of the Google results by searching on “Adam Osborne Muslim”, including the original 2011 Guardian story, it looks quite likely that’s what was going on there.)

4    A question : Jimmy Wales of Wikipedia says we have “a right to remember”. Do we?

If you want to worry about invisible censorship on the Internet, try looking at copyright rather than privacy for a moment. Jimmy Wales says (as of 6 August 2014) that Google have received over 91,000 removal requests under the right to be forgotten since 13 May 2014, when the Google Spain decision was delivered. In that time, Google will probably have received 81 million requests for URLs to be taken down on copyright grounds. Many of these are known to be sometimes completely spurious, and while a few of these are protested, most are completely unnoticed.   Are these not also part of our history?

What people are waking up to, and are rightly horrified at, is that the world as delivered by Facebook or Google is not the “real” world (whatever that means) they thought they saw. Google’s algorithm already arguably dispatches search competitors to the lurking bowels of its search results, while FB famously gamed their Newsfeed algorithm to make people feel happier. In this new world of a curated or constructed digital world, the right to be forgotten is the tiniest tip of the iceberg-sized issue.

But more fundamentally, what exactly is this “right to remember”? Remember what? Do you have a right to remember that I bit my brother when I was 8, and he broke my front tooth in revenge? I am a law professor and he is a lawyer. This sentence may now be spidered by Google. Is this banal anecdote therefore now part of the “public record” – the all-encompassing true historical account Jimmy Wales defends so severely (I do after all have a Wikipedia page)  – or is it valueless gossip that in a pre-Googlified world would have vanished outside of my immediate family within days?

In Dave Eggers The Circle, a satire that is fast becoming fact, keeping any information to yourself is seen as so selfish and so threatening that a sheer desire for solitude instead of being “live” on the Internet becomes antisocial behaviour, with brief moments free of the omnipresent public gaze snatched in toilet cubicles. In this world, “secrets are lies”, “sharing is caring” and “privacy is theft”. Is this where we want the “right to remember” to take us?


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