The Right to be Forgotten?
Every time Mario Costeja Gonzalez googled his name, the second result was a link to a 1998 newspaper article that detailed his many debts and the forced sale of his home. Mario was tired of having that old news thrown up in his face; after all, those debts were paid in full long ago. So Mario sued Google. Here's what happened next...
Forget About It!
Gonzalez, who is a Spanish attorney, understandably felt this ancient history impacted his professional reputation today. So he filed suit against Google in the European Court of Justice, to get the story removed from search results. He won his case on May 19, 2014, much to the shock and dismay of many following the case.
The EU Court ruled that search engines, just like other “data controllers” subject to regulation in the EU, are responsible for the processing that they do to personal data even though the data originates on third-party Web pages, and for the results of that processing that are presented to visitors. Search engines can be compelled by law to remove such data from their search results if it is no longer accurate due to subsequent events, or no longer “relevant” due to the passage of time, or “excessive” in that it does more harm to the individual than it does good to society.
The ruling applies only in the European Union. Presumably, someone in the EU can use the U.S. version of Google (Google.com) instead of Google.es (Spanish version) and learn all about Mario’s rough financial times. Also, Mario won merely the right to pursue legal action to force a takedown of his shame; the Court did not order its immediate removal.
Nonetheless, a firestorm of FUD (Fear, Uncertainty, and Doubt) is sweeping the Internet already. Google has always maintained that it is merely a conduit of information created by third parties and therefore should not be held accountable to any effects of that information. Everyone in the search business relies on the same shield against litigation and endless nuisance takedown demands. Now, at least the EU, that immunity is gone. What will happen next?
First, the Internet is going to be shattered into “censored” and “censor-free” parts, cry the free speech activists who blithely ignore how the Internet works. As mentioned above, the “censored” data on Mario will remain available to anyone, no matter where the seeker is in the physical world.
Second, “history will be revised!” If you hear anyone crying about that please remind him that what’s on the Internet is not history; it is revisions of history. History is made in the real world and does not change; nor does the permanent record of history kept in local government offices. Anyone with a meaningful interest in Mario’s financial history can still find it at the Spanish equivalent of the county clerk’s office.
“What, you mean DRIVE there and hunt through PAPER records?” Yes, as your grandfather and I did, and as millions still do today when they have a really good reason to do so. The inconvenience we have lost thanks to the Internet has cost a lot of people their rightful privacy. (You might not even have to drive. Many counties in the USA have put real estate and court records online.)
Then there are the technocrats whose only concern is the Internet’s efficiency. They’re fearful that Google and other search engines will have to spend resources on a flood of European takedown actions that could be put to better use indexing more pictures of cats (or whatever turns you on).
Finally, there are the Internet Service Providers who fear that if even the mighty Google can be held accountable, so can they. Plans to toss Net Neutrality out the window and give preferential treatment to content providers who pay, might turn a common-carrier ISP into a “data controller” in the EU’s eyes, subject to the same ruling that now applies to Google.
Coming Soon, to a Continent Near You?
It is unlikely that the “right to be forgotten” will be established in the United States as it has been in the European Union. The Constitutional guarantee of free speech generally trumps any government effort to suppress speech, even speech by a search engine’s algorithm. But perhaps the right to be forgotten – which is, fundamentally, the right to be left alone, a.k.a, “privacy” – will find a renewed balance with its unintended nemesis, the right to express oneself freely.
Personally, I think the EU court's decision is rather odd. Even if Gonzalez's story disappears from Google Spain, it'll still be available via countless other search engines. He (and others who take the same approach) will have to notify all of them to make sure the "stain" is completely removed. And even then, the offending story will stay online at the Spanish newspaper website that originally published the story, and on every search engine operating outside the EU.
Here's a thought -- shouldn't he instead have gone after the newspaper, to get the article removed or redacted? Or better yet, the page could be tagged with NOINDEX, as this would automatically drop it from search results and prevent other search engines from adding it to their catalogs. The EU's solution is rather like a bandaid that's flapping in the wind.
Your thoughts on this topic are welcome. Post your comment or question below...
This article was posted by Bob Rankin on 20 May 2014
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