Why the right to be forgotten is bad for business – and freedom

Emma Carr is acting director of Big Brother Watch.

BBC JOURNALIST Robert Peston has become the highest-profile victim of the European Court of Justice's (ECJ) May ruling, compelling search engines to remove links to unflattering information online, under certain terms, if requested.

The “right to be forgotten”, which allows individuals to ask for “inadequate, irrelevant, or no longer relevant” material to be taken down, sounds like a nice idea. But it has seen a 2007 blogpost by Peston, commenting on former Merrill Lynch chairman Stan O’Neal, cleansed from Google search results. Peston has described it as having “killed this example of my journalism.” Those arguing that this represents a victory for privacy rights are being naive. 

And this could just be the start. In the first four days after creating an online form to allow people to ask for link deletions, Google received 41,000 requests. Last week, the search engine announced it had started taking links down. But what is the problem?

First, while some requests should be easy to adjudicate, the lack of clear rules means that many others will sit in a vast grey zone. And if individuals appeal a Google rejection, the issue will be passed on to the relevant country’s data authority, potentially creating a European-wide perception of unfairness if different authorities take different attitudes to similar subjects.

Second, those intent on rewriting their own history now have the opportunity to censor their past – given that so much internet traffic goes through search engines. In a clear risk to free speech in Europe, for some, it seems, it is simply no longer convenient to have accurate and legal content relating to them in the public domain.

Third, the court ruling has aimed its guns at the wrong target. Google is an intermediary, not the creator of this content, and making it responsible for the actions of the creators makes censorship potentially easier. Instead of individuals tackling stories at the source via legal channels, they can achieve a similar result by requesting link deletion from Google. This is complicated by the fact that it is very difficult to find out why certain links have been removed, and at whose request.

Fourth, it would be a mistake to think this suddenly means everyone has a “right to be forgotten” online. Citizens should certainly have clarity, transparency and better rights when it comes to stopping firms collecting data without consent, or holding onto it for an unjustifiable length of time. But the ruling has done nothing to change this. Take what happens when you want to close a social media account. At present, many firms indefinitely hold onto your information, despite the fact that you have deleted your profile, just in case you decide to re-join. This has not been fixed.

Finally, there is a risk that the ruling will damage business in Europe. Google is lucky that it has the resources to develop mechanisms to adhere to it, telling Peston that it has an “army of para legals” to process requests. The Googles of the future, however, are small organisations without the resources to do the same. There is a realistic fear that this added layer of bureaucracy could lead to future startups choosing to forego a presence in the EU, given the higher cost of doing business here.

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