How the "Right to be Forgotten" affects privacy and free expression

IFEX

Caro Rolando 21 July 2014
Based on IFEX member reports from Electronic Frontier Foundation , Index on Censorship , Privacy International , Reporters Without Borders

You may recall a rather bizarre hashtag floating around the Twittersphere a few months ago. On 19 May 2014, the term #Mutuallyassuredhumiliation was trending on social networking sites, accompanied by photos that are seemingly humiliating to those who posted them.

The hashtag was created by John Oliver, comedian and host of HBO's Last Week Tonight, in response to “The Right to be Forgotten” ruling, issued by the Court of Justice of the European Union (CJEU) on 13 May 2014.

Ruling (C-131/12) states that European Union citizens have the right to request Internet search engines to remove links to potentially damaging or irrelevant information from its search results – even if the publication of the information in itself is lawful.

CJEU's judgment stems from a complaint filed by Spanish citizen Mario Costeja González against Google and La Vanguardia newspaper through the Spanish Data Protection Agency (AEPD).

In 2010, Costeja González complained that a Google search for his name produced links to two articles published in 1998 in La Vanguardia that made reference to unpaid social security debts and the seizure of his real estate by the government.

Arguing that the debts had long been resolved and the articles no longer relevant, Costeja González requested that La Vanguardia remove the articles from their website and that Google remove them from its search results.

While the AEPD upheld that La Vanguardia's articles were published legally and were in the public interest at the time they were published, the CJEU eventually ruled that González's privacy rights override “…the interest of the general public in having access to that information upon a search relating to [González's] name.”

To John Oliver, the effect of this ruling on Costeja González's public profile is rather comedic. Instead of successfully concealing private information about his financial history, the case only brought more attention to Costeja González's past. “In doing so, he's now world-famous for being that Spanish guy with debts from 1998,” Oliver said on his show. “The only thing I know about him is the only thing he didn't want me to know.”

But for free expression advocates, the implications of CJEU's ruling go far beyond silly photographs and hashtags.

Reporters Without Borders (RSF) views CJEU's ruling as a clear violation of freedom of information.

In a statement published on 14 May 2014, the organisation says that the ruling will enable individuals to demand that search results only show “the information that suits them,” thus permitting people to create digital images of themselves that differ from legally published reports. Commenting on the potential implications of this ruling, Grégoire Pouget, head of RSF New Media Desk, wonders: “will this right be extended from people to entities, taking us into a world where all information is manipulated?”

Other IFEX members have expressed similar concerns. On 3 July 2014, Index on Censorship (Index)'s Chief Executive, Jodie Ginsberg wrote that the ruling was like “the government devolving power to librarians to decide what books people can read (based on requests from the public) and then locking those books away.”

It's important to note that Index's criticism does not stem from a lack of respect for privacy. Indeed, the organisation acknowledges, “…it is clearly understandable that individuals should want to be able to control their online presence.”

Index is concerned, however, over the ruling's ability to offer sufficient checks and balances so that requests to alter search requests do not “…simply become a mechanism for censorship and whitewashing of history.”

Melody Patry, senior advocacy officer at Index, notes that while the ruling requires that a fair balance should be struck between the data subject's right to privacy and the public's right to access information, it “…does not provide any legal framework for the search engine operator to implement the removal, nor does it provide sufficient elements to guarantee public interest defence against removal.”

Jillian York, The Electronic Frontier Foundation (EFF) Director for International Freedom of Expression, echoes Patry's point. In an e-mail to IFEX, she notes that EFF is concerned about the way that intermediaries, such as Google, are being asked to become even greater regulators of speech than they already are. “When intermediaries are tasked with regulating speech,” York writes, “we are essentially turning over enforcement of the law to private companies, which are largely unaccountable to the public.”

It did not take long after the ruling for Google to begin implementing requests for the removal of links from certain search results. On 2 July 2014, James Ball published an article revealing that Google had removed several articles by The Guardian from its search results. After The Guardian publicised the information contained in the newly-'hidden' articles, and creating a Twitter account specifically to discuss similar future cases, Google reversed its decision to remove the articles from search results, without providing a reason why.

It is instances like these that give salience to a point that Jillian York makes about the ruling. In her e-mail to IFEX, York observed, “privacy and free expression don't have to be at odds with one another, but the CJEU ruling has placed them as such.”

The issue is complex. Other IFEX members do not necessarily view the CJEU ruling as a decision that pits privacy against free speech. In an e-mail to IFEX, Carly Nyst, Legal Director for Privacy International, wrote:

“While the result isn't uncontroversial, it is less about European law vs. American values, or privacy vs. free speech, and more about the technical application of the law and whether individuals should be able to contest how their information is used. A debate can certainly ensue, as it should have long ago, about the nature of search engines and whether they should be exempt from specific types of laws. This would be an interesting debate, worthy of a modern and digital democracy. But instead the debate that is occurring is one of incredulity that a company that collects and processes vast amounts of personal information has services that fall under privacy law.”

Meanwhile, Index on Censorship is offering platforms to those who hold opposing views on their own. Like those of Rik Ferguson, Vice President of Security Research at Trend Micro. On 21 May, Ferguson expressed his support for the ruling in a “counterpoint” article on Index on Censorship's site:

“Individuals are not being granted the right to rewrite history, they are being given the right to request, within the strictures of the law, that certain publishers cease to publish information about them which they consider deleterious,” Ferguson writes. “They are being given the right to be able to manage their own image online, it seems bizarre that this right is seen by some as the repression of free speech when in effect it gives the individual the right to speak up about something which they find personally damaging.”

“The Right to be Forgotten” ruling is a controversial one, which brings many rights to the forefront. Given individuals' increasing dependence and presence on the Internet, the ruling is something that will continue to be discussed as its implications on privacy, free expression and access to information are further explored. For now, perhaps one thing we can all agree on is that that the “Right to be Forgotten” goes far beyond deleting embarrassing pictures from our pasts.