The European Court of Justice’s ‘right to be forgotten’ judgement has re-ignited the debate over data and privacy in the digital world – and even the UK’s cyber law experts are polarised on the correct way to balance the internet of information with the interests of the individual.
The court's ruling that Google and other search engines must consider requests from people for information deemed “inadequate, irrelevant or no longer relevant” to be filtered from its search listings has been paraded as a victory for privacy activists and Google said it was “disappointed” with the decision. The tech giant has for years been fighting similar requests for a filtering system to be introduced, not least from the former Formula One head Max Mosley.
However, cyber experts have so far offered different interpretations of the ruling and what it will mean in practice, and the questions of whether anybody should have a “right” to be forgotten has divided legal opinion.
“The right to be forgotten is one of the central planks of the amended data protection law that’s making its way through Europe at the moment,” said media lawyer Steve Kuncewicz. “I think what the ruling gives you is a limited right to be forgotten as long as the information is out of date, plainly incorrect or doesn’t serve some kind of public interest.
“There’s an argument to say it hasn’t changed anything, but I think what it does do is at least send the message that this is high on the agenda of the data protection lobby in Europe. A lot of people are already claiming this is an out and out victory for data protection and I don’t think it is. They’ve still got a few hurdles to jump over.”
The decision from the ECJ went in favour of Spanish lawyer Mario Costeja González, who claimed Google’s listing of legal notices dating back to 1998, which detailed the forced sale of the lawyer’s property in order to pay back debts he owed, infringed his privacy and should be removed because the matter was resolved.
Google has strongly maintained that forcing search engines to filter such content would amount to censorship. Last year, associate general counsel at Google Daphne Keller said of attempts by Max Mosley to force a filter into the search engine through the courts: “If Mr Mosley’s proposal prevails, any start-up could face the same daunting and expensive obligation to build new censorship tools – despite the harm to users’ fundamental rights and the ineffectiveness of such measures.”
However, Phil James, a cyber law expert from Sheridans law firm, told The Drum that it’s entirely reasonable that Google should comply with requests to remove certain content from its search results, and that it has a duty to its customers to do so.
“Search engines do sometimes make themselves out to be the good guys – ‘It’s nothing to do with us, it’s the original publishers of the content that are responsible’,” he said. “But let’s not forget that some of these organisations are making considerable advertising revenue off their search functionality – that is their business, they are not operating as charities.
“Going to the original publisher of the information doesn’t necessarily mean it’s going to remove it from elsewhere. It’ll still be in various caches that will be picked up by search engines. People who feel there’s inaccurate information on the internet about them should have the right to go through proper means and channels, it doesn’t seem unreasonable for that information to be removed.”
He added: “I don’t think the right to be forgotten means you should be able to require Google to erase all the information about you at one single button. That’s just not going to happen. But something that is measurable and moderate to protect those genuine interests that a person has.”
Max Mosley, who has vehemently fought for action to force Google to take more responsibility, last year insisted that his case – which he has taken to courts in France and Germany – was not about censorship, but about respecting legal rulings that traditional publishers must abide by but that have never been enforced on companies such as Google.
Mosley successfully sued the News of the World for breach of privacy after the title published videos and images of an S&M orgy he was involved in in 1998. However, despite winning his privacy battle with the publisher, the material had already travelled the breadth of the internet and continued to appear in Google search listings.
"These are specific pictures,” he told the Wall Street Journal. “They’re all there in the pleadings, the exact pictures. And as it’s illegal to show these pictures, you shouldn’t show them. And they [Google] acknowledge this in the sense that if you find one being shown, they will take it down. I’m saying because you have the technology to stop them appearing in the first place, you should.”
However, tech law blogger Mark Leiser argued that in the case of Spanish lawyer González, the argument for removing content is dangerous and the decision should be treated with caution.
“For me, if a lawyer got himself into financial trouble, even if he cleared those debts up, it is in no way irrelevant to his business as it would be today,” he said. “There are standards of financial integrity that you have to hold up to. For example, law firms have very high standards about whether you can go into debt or whether you can have a bankruptcy on your record, it’s completely relevant 10 years later, no ifs, ands or buts about it.
“And you as a member of the public should be able to make judgements about lawyers handling your financial affairs based on their previous behaviour. I don’t agree with the decision, I don’t agree with the principal, and I think they overlooked the fact that it’s completely subjective whether or not that information would be relevant.”
He added: “Although the decision seems to indicate reigning in the excesses of Google’s business model, people will still have to prove a legitimate interest in getting embarrassing stories away from search engines. I would, therefore, refuse the interpretation that this ruling creates an automatic right to forget to be exercise by internet users.
“In particular sets of circumstances where it is legitimate to do so, it may create a legal obligation to remove certain content, that’s all. Nothing else.”
Legal experts agree that Google will likely appeal the decision and continue to fight against the requirement for any filtering system. However, according to Kuncewicz, the ruling signals a recognition that online privacy is being taken “extremely” seriously in Europe and the right to be forgotten will remain high on the agenda for the data protection lobby.