Which is more important to you, your right to freedom of speech or your right to privacy? Would you rather have the ability to control what is said about you or the ability to speak openly about contentious subjects? A fascinating collision between these rights is currently under way in the European Union (EU).
On 13 May, the European court of justice (ECJ), the highest court in the EU, ruled in favour of Costeja González and against Google. González asked the search engine giant to remove some unflattering links from the results that appeared when anyone searched for his name. Google refused, and so he took the company to court.
We can all sympathise with González. When his home was repossessed in 1998, a notice appeared in a local paper and on its website. Most people would want to forget such an unpleasant and embarrassing event as soon as possible. But Google’s results continued to remind the world of the repossession more than a decade later.
With its ruling, the ECJ effectively created a new legal right — the right to be forgotten. Since the ruling, tens of thousands of requests for removals have been pouring into the system that Google has set up for their handling. But the current solution is both deeply problematic and impractical.
For starters, González only sued Google when the body that regulates privacy in Spain refused to order the newspaper, La Vanguardia, to remove the page. To do so, it ruled, would be tantamount to censoring the press. And so the ECJ has sided with González and shot the messenger instead.
Google search is, after all, just an index of the Internet. To call what it does “publishing” is to fundamentally misunderstand the nature of the Internet. Google provides a map to the information; it does not own or control that information itself. It’s like blaming your car’s GPS when you get into a traffic accident. “You told me to turn here! It’s your fault!”
Unfortunately, the way Google has chosen to enforce the new right is only adding to the confusion. In the last week, website owners in the EU have begun receiving vague notices that some pages on their sites will no longer appear in results for “certain searches on European versions of Google”. So they know which pages are affected but not why.
This vagueness sparked a minor panic in the British press. The BBC’s economics editor lamented that Google “cast me into oblivion” by removing one of his blog posts from its index. The Daily Mail, true to hysterical form, compared Google’s actions to “burning books in a library”.
But these reactions are overblown. Google has not removed the pages from its index entirely. It has only removed them in response to specific searches. So while searching “Costeja González” will no longer find the page that started this landslide, searching for any other phrase on that page will still find it.
What’s more, this removal is limited to EU versions of the Google index. Anyone using the US version of the search engine will see the complete and uncensored results. This makes any remedy strictly palliative. Anyone with an ounce of computer skills will easily be able to circumvent the censorship.
And while the ECJ ruling doesn’t amount to censorship of the press in the strictest sense (since the pages themselves still exist on the Internet), it does open the door to worrying abuses. There’s nothing to stop crooked politicians or career criminals from making requests to Google.
As James Ball of the Guardian puts it: “The ruling has created a stopwatch on free expression — our journalism can be found only until someone asks for it to be hidden.”
Part of the problem is that Google has chosen to assess all the requests internally. This is probably an attempt to limit regulatory interference in its day-to-day business to an absolute minimum. But by doing so, it has become the final arbiter on what deserves to be censored from its results.
Such calls need to be made by a state-appointed regulator. This will be slower and more painful for both the requesters and for Google, but the alternative is too problematic. These removals, even in their limited forms, are a direct contradiction of the rights to freedom of speech and freedom of the press. To have a private company making these decisions via an opaque process is to invite a legal, ethical and practical disaster.
The root of this problem is the ECJ’s broad and impractical ruling. Its intentions were good, but the unintended consequences of its decision will cause more problems than it solves. Case in point, again, is González. His very public legal battle has ensured that, instead of one page, there are now thousands of pages about his embarrassing past.
The Internet is a fundamentally open medium. Attempts to restrict or censor it can never be entirely effective. Even centralised autocracies like China cannot completely control the flow of information across borders. And the surest way to draw attention to any information, however sensitive, is to try to hide it. Just ask Edward Snowden.
Does that mean people such as González must continue to suffer the indignities of their pasts forever? No, but the process of seeking remedy needs to be radically overhauled. Filling in a form on a web page to be reviewed in secret by a private company is not sufficiently transparent or rigorous. Not when the potential consequences are so wide reaching and serious.
We all deserve the right to be forgotten, but with that right comes a responsibility. We must be able to prove, conclusively, that our request is not against the public interest. When in any doubt, regulators must rule in favour of freedom of speech. Any other standard will only lead to much more serious problems than the mild embarrassment of a single person. — (c) 2014 Mail & Guardian
- Alistair Fairweather is chief technology officer at the Mail & Guardian
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