Who Has the Right to Be Forgotten on the Internet?

Five months after a European court decision that required Google (and other search engines) to "forget" certain information about people, the mechanics of that forgetting is still a complicated muddle.

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Oct 21 2014, 12:00pm

Last Thursday, at a public hearing about the “right to be forgotten” in central London, Google Executive Chairman Eric Schmidt had a bit of trouble pronouncing the names of the eminent Europeans with whom he shared a stage. But he tried his best. And he muddled his way through.

It’s an apt metaphor for the way that one of the world's most powerful companies has been struggling in the wake of a ruling by the European Court of Justice (ECJ) in May on the so-called “right to be forgotten.” The court ruled that Google (and other search engines) must allow individuals to erase certain results that appear on web searches of their names—when the linked-to information is “inadequate, irrelevant, or excessive.” The court’s reasoning: Normal people have a right to be forgotten online.

Reaction to the ruling bordered on hysterical. Depending on your view, the ECJ has either safeguarded individual privacy or heralded the slow death of the free and fair Internet in Europe. MailOnline publisher Martin Clark said that de-linking was “the equivalent of going into libraries and burning books you don’t like.”

When a site is “forgotten” on Google, it’s not actually deleted at the source, or even erased from all internet searches—but it does disappear from searches of the individual requester’s name. Now, if you Google search for a name in Europe, a notification appears at the bottom of the search page: “Some results may have been removed under data protection in Europe.”

But the court was vague in its definition of “inadequate, irrelevant, or excessive” data. As a result, Google has been reluctantly cast in the role of pan-European judge and jury of the internet's collective memory, responsible for deciding (behind closed doors) what constitutes the continent’s public interest.

Shortly after the May ruling, an evidently pissed-off Schmidt cobbled together an “Advisory Council on the Right to be Forgotten,” which includes an Oxford ethics philosopher, a former German justice minister, and Wikipedia boss Jimmy Wales. Google followed that up by launching a road trip. Last Thursday’s event was one of seven town-hall style meetings being held by the company across Europe.

Some have dismissed the tour as a PR stunt, and suggested that the company is engaging the public only to show up the clusterfuck that has been born of the ECJ ruling.

If that’s true, well, mission accomplished. On Thursday, I went to one of Google’s public meetings in London to find out who does and does not have the right to be forgotten on the internet. Four hours later, I left feeling sure of one thing: Implementing the ECJ’s decision is going to be really, really hard.

Schmidt began the day by discussing some more clear-cut cases. A victim of physical violence wanted references to the assault removed from web searches of his/her name. Google said OK. A pedophile wanted recent data about his conviction de-linked. Google said nuh-uh.

So far, so simple. But in other cases, lawyers have wavered. Google has struggled with the case of an adult who wanted reference to a teenage drunk driving incident de-linked and the case of a former member of a far-right party who no longer holds extreme political views.

In deciding whether or not to de-link, Google must consider how “relevant” online data is, taking into account factors like “time passed,” the “purpose” of the information, and the role that the data subject plays “in public life.” Google must balance “sensitivity for the person’s private life” with “the public interest.” And it must determine if linked-to data is “inadequate” or “excessive.” But what does all that it even mean, at a practical level? What terrible things can you do and then have expunged from the internet’s collective memory forever?

Photo via Flickr user Anthony Topper

Let’s start with a fairly likely scenario. You’ve been recorded or photographed doing something that the internet deems hilarious at your expense—enthusiastically making out with someone who looks really bored, dancing really energetically and embarrassingly, that kind of thing. If the web has tied that meme to your name, do you have the right to hide from the digital public? 

Gabrielle Guillemin of the nonprofit Article 19 suggested that embarrassment is not a good enough reason to request de-linking. But Google Advisory Council member Peggy Valcke, a law professor in Belgium, suggested that it could be. And anyway, argued Oxford University philosopher Luciano Floridi, another Advisory Council member, “Embarrassment comes in degrees. Social embarrassment becomes social stigma becomes losing your job… Do you we have a way of understanding when embarrassment, discomfortm and unpleasantness become harm?” Does the calculation change when the data involves a child? Or an otherwise vulnerable person? It didn’t really get cleared up.

What if the source of the embarrassing material is you? Say you posted an emo selfie on MySpace ages ago and now it’s ruining your nascent cage-fighting career. Schmidt conceded that things get tricky when requesters themselves published the data that they now want de-linked. Recently, a media professional in Britain asked Google to erase links to “embarrassing content” that he himself posted online. Google said no.

What about if you’ve done something more serious? Say you’d rather everybody didn’t know about all that embezzlement you got caught doing at your last job. Panellists agreed that de-linking information on things like criminal convictions would depend, in part, on whether the requester is a public figure. But how do we define a “public figure”? David Jordan, the BBC’s director of editorial policy and standards, introduced the hypothetical case of a voluntary school board member—a guy who's "famous" evaluating the quality of school lunches. Is this man a public figure? And so, does all his data belong in the public domain?

Photo via Flickr user fisakov

Evan Harris, a former member of UK Parliament and now associate director of the Hacked Off campaign, suggested that people might ask for information about prior fraud to be de-linked, then later run for public office. By extension, is everyone’s data in the public interest on the grounds that we’re all potential future elected officials or important people? Again, it wasn’t made clear, but to stand a better chance in that election, you should request that Google forgets before printing your campaign posters.

Already, many de-link requests have come from criminals. Schmidt gave the real-life example of a convicted criminal served his time and who now wants reference to the conviction erased from search results. Should old convictions be “forgotten”? How old is old enough? This was also left—you guessed it—unclear.

Increasingly, advocates on both sides of the line are joining together to issue a common plea that these critical decisions be made in European courtrooms rather than in Google boardrooms. They also insist that Google’s decisions be subject to external review. Currently, there is no appeals process for content publishers who disagree with a Google de-linking decisions. That may change, and soon. European regulators are already at work, beefing up the continent’s data protection policy, with an eye to codifying the right to be forgotten.

Philosophy aside, Google is faced with a logistical nightmare. The company has reportedly hired dozens of lawyers and paralegals to deal with de-link requests on a case-by-case basis. “It’s not obvious to me that this can ever be automated,” said Schmidt on Thursday. Already, Google admitted to errors—and has re-linked some of the half a million de-link requests that they have fielded since May.

And yet, for now, there remains a simple  way to maneuver around this new European internet. Going to google.com (rather than, say, google.co.uk or google.fr) transports European internet searchers to virtual America—and thus gives them access to the entirely “remembered” internet that they once knew. On Thursday, Schmidt was asked whether European searchers should simply start using the .com site. “I am not recommending that,” he said, with a wry smile.

Follow Katie Engelhart on Twitter.

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