The ruling by the Court of Justice of the European Union (CJEU) in May of this year, which has now become known as ‘the right to be forgotten’ ruling, continues to raise comment in the press and on the web. The thread that seems to run through much of the comment frankly reads a bit like a petulant child having its sweets removed. A little bit of clarity and distance is required.
First lets be clear about this – not everything that comes out of the European Union is clearly bad, but equally not everything is clearly good. In this particular case, the judgment from case C -131/12 in trying cover all bases has ended up being less than ideally clear and is creating problems for search engines operating in Europe. But why should we care?
The problem is that it is trying to do two things at once: protect the privacy rights of the individual AND protect the right of the public to know when information about an individual is of genuine public interest. That is, public interest, not interest of the public. Prurient curiosity is not a good enough reason to need to know.
This is an argument that has been explored ad nauseam in the Leveson enquiry of course and this is of great interest to public figures and press alike. It is of less interest to other ‘private’ people, until of course spurios accusations are made about them on the internet, or in the press. Private individuals generally do not have the resources, or knowledge, to defend themselves effectively in such cases and the CJEU have, with this ruling, made an attempt to help us normal folk out.
So why the hoohah? Well the primary argument is that individuals with information about them on the internet that is of genuine public interest, can request to have that information removed from the indexes of the search engines operating in Europe – there have been thousands of such applications. The secondary argument is that private organisations such as Google, Bing and Yahoo can now decide what we can and cannot see on the internet.
The third argument against this ruling is that it is ineffective anyway as European users can now switch to the international version of the search engine instead of their country focused one. Google has even helpfully now added a google.com link on the bottom of the google.co.uk home page to make this a bit easier.
Let’s work through this. Firstly, individuals wanting to have information about them removed from the index is the whole point. However, there are some issues being conveniently being forgotten by the protesters. That is, the search engines can refuse to remove anything deemed to be genuinely in the public interest. Parties wishing for index information to be removed must then fall back on the information commissioner equivalent in their own country.
To be clear, the CJEU judgement does not say remove the information from the internet, simply from the search engine’s index. How it got into that index in the first place is, in detail, a commercial secret that none of the search engines want to fully reveal. Even if anyone succeeds in having their information removed from the search engine index, the information will remain on the internet, possibly linked up from other sites that continue to be indexed well, but for other reasons. The removal of that source information will be a whole other battle which will often have the unintended consequence of bringing to the fore information that was, in fact, forgotten anyway.
Jimmy Wales, the founder of Wikipedia last week warned against private companies such as Google being forced to censor history. But hey, guess what Jimmy, they already do and have been doing it for some time without any regulation, in their own way, following their own rules about what can and cannot be seen. These rules are only semi transparent, the final detail is completely opaque and they change them on a pretty regular basis, on a whim, without any warning, often with dire commercial and financial consequences for any business that is substantially dependent upon internet sales channels.
With respect to being able to get around the judgement, oddly enough here we have some real benefit. In recent times, Google in particular has made it more and more difficult to get a clear perspective on what a search result really is. Factors are put into the equation such as the searcher’s location and past search history. By location I mean right down to the locality not just the country. This means if you type in a search for (say) electrical services here in sunny Sunderland, you will get a different result to the one you will get if you type the same thing in Wolverhampton. Attempts to get around this by using the international site were in the past thwarted and the normal user was forced to their own country’s version whether they wanted to or not. This judgement has reversed that, in effect forcing Google to now give access to the international view to those that want it. This has got to be a good thing.
It is these search companies that decide what is to be known and how prominent that information should be in searches. They are already in control. This CJEU judgement seeks to pull some of that control back to the individual. It is fair to say that in doing so it has handed the primary decision back to the very organisations it is trying regulate, but nonetheless it still provides a real route of redress for genuine victims aswell as criminals and fraudsters. More particularly it has delivered a little more control back to the public user and reversed (if even just temporarily) a trend of private companies making completely opaque, unilateral decisions about what can and cannot be seen without any hope of error correction from the little man.
Just twenty years ago, pretty much everything was a secret until the press decided to reveal it, or single minded seekers of truth trawled though archives and records in public libraries. Now everything has to be public and, it seems, everyone has to know everything about everyone else. The individual’s right to say no to that new situation has been limited by an opaque indexing system controlled by private companies all with head offices in the USA.
The ‘the right to be forgotten’ ruling from the CJEU has clawed some of that right back – for now.