In 2010, a Spanish man named Mario Costeja González sued Google Spain and Google Inc. after complaining that a Google search brought up a digitized auction notice of his repossessed home. He claimed that because the issue had been resolved in 1998, the information was unnecessary and a violation of his privacy rights. Google countersued in the Spanish National High Court, and on May 13th, 2014, the European Union Court ruled that, “individuals have the right – under certain conditions – to ask search engines to remove links with personal information about them. This applies where the information is inaccurate, inadequate, irrelevant or excessive for the purpose of the data processing”. Under the “right to be forgotten” ruling, if the company does not “respect the rights of citizens, such as the right to be forgotten,” it can be fined “up to 2% of annual worldwide turnover”.
The day the ruling was made, Google reported that it received 12,000 requests for links to be removed.
The “right to be forgotten” is a term that only really entered mainstream legal vocabulary in 2010, with the before mentioned Google lawsuit. However, the basic principle of the term can be traced back to the British Rehabilitation of Offenders Act of 1974. This act states that after some period of time, certain not serious criminal offenses are deemed as “spent,” i.e. they do not need to be considered to obtain a job, apply for insurance, etc. In France, the government upholds le droit d’oubli, or “the right to oblivion”. This sacrifice of the right to have access to information for privacy contrasts greatly with the attitude in the United States, which holds the right to know as paramount.
However, the moral quagmire of these two rights – the right to privacy and the right to uncensored information as part of freedom of expression – has caused a great amount of debate amongst proponents of both.
Critics fear that this ruling will greatly hamper freedom of expression. The Index on Censorship, an international organization that promotes the right to freedom of expression, expressed their opinion that the ruling, “…allows individuals to complain to search engines about information they do not like with no legal oversight,” and that it, “violates the fundamental principles of freedom of expression”. There are concerns that search engines could censor vital information. Business intelligence has also been called into question. Companies are required by law to release information to the public, which is useful for individuals or other businesses that wish to partner with or invest in a company.
The other sentiment is that the public truth and the private truth must remain separate. Although information is vital to our history, and the information and history we have brings about justice, if some private information is unnecessary, then it has no place being online.
There are certainly valid cases where the online privacy rights are valid. “Revenge porn,” which is when an ex-boyfriend posts nude pictures of their former partner online, has been approached by Google as links that should definitely be removed upon request. In some instances, people’s pictures being used as Internet memes has resulted in emotional trauma. In 2003, Ghyslain Raza, known as “star Wars Kid” had a video of him swinging a broom like a light saber posted on the Internet. By 2006, the video had 900 million hits. Though the video was a massive viral hit, Raza was bullied perpetually, causing him to become depressed to the point where he needed drop out of school and check into a children’s psychiatric ward. A South Carolina family found that a picture taken of their 2-year-old daughter, who has a rare disorder that affects her motor skills and physical features, was being used as an Internet meme. The picture was being compared to a “monster,” the mother of the child told a local television station. The “right to be forgotten” ruling is an affective method of dealing with these online harassments.
An individual could also correct false information published about them, such as an incorrect credit score. In France, le droit d’oubli protects public figures, such as politicians, from having their private sexual exploits published by newspapers.
Though the “right to be forgotten” can protect individuals from what newspapers publish, it does not obstruct the freedom of expression the media possesses. Yet news sources are complaining that the ruling is obstructing the people’s ability to find articles that they have published. The Guardian, a national British newspaper, found that inside the UK, an article they published in 2011 about a former Scottish Premier League referee who lied about his reasoning for granting a penalty in a soccer game did not appear when they entered “dougie mcdonald guardian” into Google. When the exact same wording was typed into the US version of Google, the top three results http://www.onlinepharmacytabs.com were Guardian articles. This hampering of news article accessibility limits important general knowledge and could ultimately be seen as an affront to the allocated freedom of speech that the media possesses.
Jimmy Wales, co-founder of Wikipedia, has described the ruling as “deeply immoral.” He commented that, “History is a human right and one of the worst things that a person can do is attempt to force to silence another”. As of August 6th, 2014, Wikipedia had received over 50 notices that Google will be removing links to their articles, such as one on convicted Irish bank robber Gerry Hutch.
This ruling can affect the individual as well. On October 30th, 2014, Austrian Pianist Dejan Lazic requested that the Washington Post remove a negative review they gave the pianist in 2010. Although Lazic incorrectly submitted the request, which should have gone to the search engine in question, his complaint outlines a troublesome attitude the EU ruling could bring about.
An internet where individuals can request to have their skeletons kept in the closet could lead to a censored Internet. A political figure with a dalliance in the past could request a search engine take down links relating to their affair. Though this reasoning may seem persnickety, if Western, progressive countries are adopting this policy, then more heavy handed regimes will only feel encouraged to follow suit. Already, Russia is considering legislation that would be applicable to major search engines such as Google and Yahoo, as well as domestic search engines. Even Canada established legislation in 2014 that orders Google to block cites on its worldwide search engine. If governments are able to dictate what can and cannot be found on a search engine, what is to stop more extreme countries from doing the same?
The effectiveness of the EU ruling may also be brought into question. The Internet has proved time and time again that it is impossible to completely remove content from the web, whether it be an embarrassing photo of Beyoncé at the Super Bowl halftime show or the President of Nigeria Robert Mugabe’s viral trip. If someone wishes to find information on a search engine, they could use a Virtual Private Network, which allows a device with access to the Internet to share information across public networks, but with the same security as a private network. A VPN allows the user’s IP to access other countries’ networks, depending on the VPN that you purchase.
This ruling is not a mark of the decline into an Orwellian state, nor is it the ruling that will destroy the internet, but it is certainly not a great solution to the issue of privacy in today’s interconnected world.
Proponents of both free speech and privacy rights present compelling scenarios in this debate. On one hand, instances where details that are minor yet harmful to one’s image should be restricted from access on a search engine. The 2014 celebrity photo hacking scandal, in which Jennifer Lawrence, Kate Upton, Ariana Grande, and many other celebrities had nude photos stolen off of their phones by unknown hackers, presented the United States with a very public instance of privacy invasion. One celebrity’s lawyer established copyrights for the photos taken by the celebrity, and was able to have Google take down the images. Although the images can still be found online, it is much more difficult for a person who is not tech savvy to find them without a search engine. The right to be forgotten ruling in scenarios such as these would make the legal process much less arduous, and harmful personal information or photos would be much harder to find. However, if an important figure such as a politician has had personal issues in the past, would the public have the right to have easy access to them? Some critics, such as Jules Polonetsky, the executive director of the Future of Privacy Forum, argue that, “requiring Google to be a court of philosopher kings shows a real lack of understanding about how this will play out in reality”.
Though there is not a definite, overarching solution to the issue of the right to be forgotten, it is imperative that individuals are aware of the devastating effects that making private information available can have. Although it may seem appropriate at the time, things such as sending nudes or tweeting an inappropriate comment can come back to bite you later on. If people are more aware of the information they put out on the web, then although it will not completely solve the issue of the right to be forgotten, it will help ensure that you will not need to fight to be forgotten in the first place.
Disclaimer: The views and opinions expressed in this blog are those of the author and do not necessarily reflect those of the Reiff Center For Human Rights and Conflict Resolution or Christopher Newport University.