The Right To Be Forgotten

07 Aug 2014

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The digital footprint is not a new issue. It is pretty much a truth universally acknowledged that everything we do online leaves a trace, and as a result of this revelation people are more careful about their online activity. But what happens when things which happen offline start contributing to your digital presence? Enter the “right to be forgotten” ruling.

How did it start?

In 1998 a Spanish citizen – Mario Costeja Gonzalaez – found himself in financial difficulties and put one of his properties up for auction. The auction details were covered in a local newspaper and online. As a result, sixteen years later if you were to search for his name online, information about his financials and property auction from sixteen years earlier would still appear. He has now fully recovered from the money trouble, but it continues to haunt him online and is damaging his reputation.

He lodged a complaint against the newspaper and Google Spain and this case got as far as the European Court of Justice who agreed with his claim that he had the “right to be forgotten”, consequently setting a massive precedent for future cases against search engines and their crawl efficiency.

What can be removed?

According to the EU Justice Department factsheet on data protection, individuals have the right request removal of information which is “inaccurate, inadequate, irrelevant or excessive”. Simple, right? Wrong. There is still a whole heap of ifs and buts surrounding the de-indexing of information, led, most prominently, by the importance of keeping data online which is in the public’s interest.

For example if a search of your name resulted in details of an arrest or compromising images of yourself from years before, you could potentially petition to have these removed claiming that they are harmful to your reputation. If however, you happen to work in the public sector, this would most likely be considered to be of greater importance to the public than to your right to privacy.

What happens, however, if you’re just an Average Joe and you successfully petition Google to remove the information about your arrest, and you then decide to embark on a political career? Surely the information is now in the public’s interest, but do search engines have the right to reintroduce that information?

Who decides?

Who gets to decide what information is eligible for removal? Since the introduction of the law, Google has received 90,000 requests for data removal from members of the EU alone. 90,000! That is unbelievable. Who passes the final judgement decreeing whether data is harmful to the individual? What constitutes harmful? Is it a case of financial damage or damage to reputation, or both? Surely “reputational harm” is subjective; what one considers to be seriously detrimental and unrecoverable, someone else might think is just a bump in the road.

There are so many questions (and these are just the ones I can think of right now, what about the rest of the world?) it seems that the EU Justice League have gone in, with their data privacy heads on and – much like the Batman and Green Lantern – with little thought of repercussions. Has some hotshot in Luxembourg fancied himself as Superman and fixed Mario Gonzalez’s problem, just to have 90,000 other people turn around and call for help too?

This week saw the first link removed from Wikipedia, much to the chagrin of Jimmy Wales, Wikipedia’s founder who claims that the ruling is “a very dangerous path to go down”. In theory Wikipedia is an encyclopaedia in which all information is accurate and true. If information is removed from a factual source surely this is tantamount to censorship?

What right does a private company have to remove truthful and accurate information? Surely decisions such as these should be made by an impartial, non-profiting body? More questions!

Get a grip

Natasha Lomas writes that the only way for “creativity to flow” and the technology industry to flourish is to give society the “flexibility and freedom to try and space to fail”. She uses this as reason to encouraging deindexing, with the understanding that failure shouldn’t be skulking in the background and influencing every new decision. We need freedom from the shackles of failure if we are going to thrive in the future.

But there’s also a flipside – shouldn’t we all own up to our mistakes, our errors and our misjudged misadventures and carry them with us? If these actions shape our future decisions, businesses and lives shouldn’t they shape every part of us, including our digital selves?

Forget me not?

There are strong cases on both sides of this debate; it is definitely not a cut and dry situation. The longer the battle rages the longer buzzwords like censorship, free speech and human rights will fly about, freaking people out who don’t really know the details. One thing is for sure though, and that is it should not be up to Google, or any other search engine, to decide which links are indexed and which are not.