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  • The right to be forgotten

    Europe expands the power of the delete key
    Europe expands the power of the delete key

    The internet is a place where, without even trying, words achieve immortality. Once posted, even the most frivolous thoughts are automatically copied, archived, and indexed. To be sure, the web can be ephemeral. Studies show that much online information is short-lived, with up to eighty-five percent disappearing within a year. And we’ve all had the frustration of failing to find something that we read online just the week before. 

    But words do have permanence. Back in the first century BCE, the Roman poet Horace advised young writers not to put their words out into the world too soon: nescit vox missa reverti, ‘the word, once sent, can never be recalled.’ Today that advice would be, 'an email once sent . . . .' There is simply no “undo.” Horace 2.0 would warn, ‘The internet never forgets.’

    But a recent decision by the European Court of Justice (ECJ) tries to do just that, make the internet forget, because, according to the Court, everyone has the right to be forgotten.

    Here’s what happened: In 1998, the Barcelona newspaper La Vanguardia carried an official announcement, in print and in its online edition, that real estate owned by Mario Costeja González had been seized and would be auctioned off to settle his debts. Eleven years later, Costeja González found that anyone searching for him on Google would be directed to that announcement, so he sued La Vanguardia and Google Spain to remove the information and any links to it. He claimed that the announcement of the debt sale was no longer relevant and could be prejudicial to his present interests (Google Spain SL and Google v. Agencia Española de Protección de Datos [AEPD] and Mario Costeja González [C-132/12]).

    This is the newspaper announcement that prompted Costeja González to sue: 

    1998 newspaper ad announcing debt auction

    Detail from the Jan. 19, 1998, edition of La Vanguardia, announcing the debt auction. Translation: The two halves of a duplex at 8 Montseny St., property of Mario Costeja González and Alicia Vargas Cots, respectively. Area: 90 sq. meters. Mortgage: 8.5 million pesetas. Minimum bid, 2.3 million pesetas per unit. That’s about $25,000 each in today’s dollars.

    The European Charter guarantees both free speech and an explicit right to privacy. In its deliberations, the European Court of Justice found that there is also a right to be forgotten implicit in the right to privacy. The right to be forgotten overrides the competing rights of journalists and artists to express themselves (free speech), or the right of the public to access information (the freedom to read). The Court affirmed,

    the [individual’s] right to object at any time, on compelling legitimate grounds relating to his particular situation, to the processing of data relating to him, save where otherwise provided by national legislation.

    The Court found that putting information online and retrieving it with a search engine each constituted "the processing of data," as defined by law. It acknowledged the newspaper's right to keep the debt auction notice in its online archive, because journalism is protected speech, but it ruled that Google must take down its link to that notice, making information from the news archive much harder to find.

    In the opinion of the Court, search engines must now respond to any justified request by removing the offending links even if the information that they link to is true.

    The following screen shots show two searches for Mario Costeja González made three months after the ECJ ruling. The google.com search from the US carries a link to the announcement in La Vanguardia, though it doesn't appear until the top of the third screen. The first two screens show only links about the “right to be forgotten” ruling. In contrast, the British search engine google.co.uk displays the same links to the recent court case, but the link to the 1998 debt auction announcement is gone. Instead, UK users get a note at the bottom of each screen indicating that “Some results may have been removed under data protection law in Europe.”

    search from US-based google.com

    Above: Third screen of a google.com search for Mario Costeja González from the U.S. Below: screen shot of the same search done via a European search engine.

    search on UK-based google.co.uk

    Information providers whose links have been deleted receive this notice of removal from Google: 

    Notice of removal from Google Search: We regret to inform you that we are no longer able to show the following pages from your website in response to searches on European versions of Google.

    After a list of affected links, Google directs users to a page explaining the policy.

    Google Europe notice of link deletion

    In its decision, the European Court of Justice made it clear that not every request to be forgotten deserves to be honored, that removing data must be done on a case-by-case basis. This imposition of selective forgetting threatens to swamp Google and other data uploaders with frivolous take-down requests. 

    Google v. Costeja González represents a sweeping defense of internet privacy, but it's also a blow to free speech online. To complicate matters still further, the European Commission has drafted a new General Data Protection Regulation, on track for adoption later this year, that will take what is now an implied “right to be forgotten" and encode a new "right to be forgotten and to erasure" into EU law. Adding "erasure" to the right to be forgotten would allow people to request deletion not just of links to information about them, but also the information itself. Google would have to delete the link to a newspaper notice of a debt auction, and the newspaper would have to delete that notice from its online archive.

    A European Commission fact sheet reassures critics that the “right to be forgotten” does not create “a super-right” to privacy that trumps all others. It reminds us that like free speech, the rights to be forgotten and to erase one’s past are not absolute. All rights conferred by the European Charter are contingent on responsible exercise:

    The right to get your data erased is not absolute and has clear limits. . . . A case-by-case assessment will be needed. Neither the right to the protection of personal data nor the right to freedom of expression are absolute rights. A fair balance should be sought between the legitimate interest of internet users and the person’s fundamental rights. Freedom of expression carries with it responsibilities and has limits both in the online and offline world.

    Lest too many Europeans leap at this chance to deny an unsavory past, the Commission also assures us that historical amnesia is not the EU’s goal:

    The right to be forgotten is certainly not about making prominent people less prominent or making criminals less criminal.

    But a fact sheet is not a court of law, nor can it predict how government agencies or commercial enterprises like Google will decide, case by case, the many deletion requests that they’re already receiving in the wake of the “right to be forgotten” decision. Less than three months after the ECJ ruling, Google had processed more than 91,000 requests to remove some 328,000 links, and it had complied with about half of them.

    The European Commission envisions that every information uploader--whether government agency, big business, or individual blogger--will form a panel of highly-trained experts to thoughtfully adjudicate requests for erasure. But the sheer weight of the task means we won't see an even-handed and uniform application of European law for each request, but batch processing based on random, ad hoc decisions by low-level clerks or civil servants about what information is out-of-date, or prejudicial, or a matter of public interest, or protected by artistic or journalistic freedom.

    As for Mario Costeja González, he got his right to be forgotten. Unfortunately, his stunning victory ensures that he will be remembered. The day that the European Court of Justice ruling came down, his name went viral. Soon after, James Ball observed in the Guardian news blog,

    On Tuesday alone, 840 articles in the world’s largest media outlets were written in reference to his case, including in countries where his name would otherwise never have been heard, and where the ECJ’s ruling will never reach.

    Costeja González will now be known both as a debtor and as the man who sued Google and won. His only chances for oblivion are to ask Google to take down all the links to his lawsuit as well, or to hope that his name is among the eighty-five percent of internet content that will disappear within a year. Or he could change his name.

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