Voxeurop community Google vs. the EU

Un-writing history: The ‘right’ to be forgotten

Published on 10 June 2014 at 08:11

Google has announced it has taken steps to comply with the EU’s freshly minted 'right to be forgotten’. Is this a cause for celebration or are history and truth under threat?

Who owns the past? A European Court of Justice (ECJ) ruling has thrown this abstract question into sharp focus. The answer, it turns out, is: not you.

Like a legal zombie we thought was safely dead, the right to be forgotten has been resurrected and is set to wreak havoc on fundamental questions of truth.

The March 13 ECJ ruling followed a complaint by Mario Costeja González, a Spanish citizen, who objected to two reports from La Vanguardia newspaper on financial matters which, while accurate, he felt cast him in a dim light. The ECJ interpreted the 1995 EU data protection directive as giving Mr Costeja González a right to have links to these articles removed from the search engine.

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Mr Costeja Gonzalez himself is unlikely to be forgotten, however. Intentionally or not, he has changed the world. As a result of his legal complaint Google has introduced a facility which European users can use to request the removal of links to pages about them. Deletion will not be automatic, but Google’s adjudications will be open to challenge by Europe’s domestic data protection agencies.

As we have already seen in Mr Costeja Gonzalez’s case the information need not be untrue or libellous to qualify for removal. Google says it received 12,000 deletion requests in just the first 24 hours after making the facility available.

There are two competing forces at work here, and it may well be the case that their moral force is felt to be equal and opposite. On the one hand is the right to a private life, particularly in light of fears about the power of information businesses like Google and Facebook, and on the other is the question of the public record.

The move to create a right to be forgotten is not new, having been on the cards now for three years. When I last visited this subject in VoxEurop back in 2011 I noted with some alarm that it amounted to a right to have events stricken from the historical record. Don’t like something that was written about you? Even if it is true or a matter of opinion? Down the memory hole it goes.

Following a 2013 published legal opinion by ECJ advocate general Niilo Jääskinen many thought the right to be forgotten itself was to be flung down to the metaphorical incinerator that lurks beneath the court’s Luxembourg headquarters, but the May 13 judgement has changed that.

The question of power is a not insignificant one, so it is not hard to see why the ability to delete links to unflattering material is a popular one. As the philosopher Jaron Lanier has argued, Google already has quite a grip on our lives and many are delighted to see some limits placed on it and its competitors.

Of course, our relationship with Google is voluntary in nature. We are all free to not use its services and plenty of alternatives exist. Whether or not they are as good, or whether we have the moral wherewithal to stay away from Google is beside the point.

There is also a cultural divide at work. As Steven C. Bennett notes in The Berkeley Journal of International Law, there are major tensions between European and American approaches to rights, including in the digital sphere.

In the United States, a jurisdiction better known than Europe for taking a strong stance on individual rights, commentators have tended to view the right to be forgotten as bizarre. The typical US response is to encourage personal responsibility, educating users about the implications of what they post online and telling them to live with the negative views others may hold of them. Europeans have, in general, seen the real issue to be the need to slap down big business.

On this issue at least, our American friends are right. The right to be forgotten is a phoney right. I don’t like nasty things being written about me any more than anyone else does, but that doesn’t mean I have carte blanche to remove them from the public record.

The right to be forgotten is a matter of individual rights, but not in the way its advocates suppose. The very conception of such a right is an offence to the right of individuals to learn about the world they live in. The fact that powerful entities like Google were caught in the crossfire should not blind us to this fact. Far from protecting individuals, the ECJ’s judgement cedes more power to the powerful who would seek to have themselves portrayed only in a flattering light.

Since the dawn of the newspaper age the powerful have sought to control what is said about them in order to control what is thought about them, and, ultimately, what is done to them. Of course, the press itself is today viewed more frequently as an abuser of power than as a bulwark against its abuse.
The ECJ’s move should not be hailed as a victory for the little guy just because it was a ruling against giant corporations such as Google and Facebook. The right to privacy is a very real thing – no-one should have the right to snoop on us in our homes or force us to tell them our thoughts – but it does not extend to our actions in the public sphere, no matter what the ECJ says. The past belongs to us all, not only those who acted to shape it.

Those celebrating the judgement as a victory for individual rights should pause for a moment. It’s not as though Europe has entirely clean hands on the matter of citizens’ rights in the digital age. Europe, both as a whole and in the form of its constituent nations, is no slouch when it comes to data harvesting and retention. A better cause to fight for than any, frankly imaginary, right to be forgotten would be to demand an end to data retention by telecoms companies at the instigation of the state.

The fact that the EU’s breathtakingly broad 2006 data retention directive has been ruled invalid (following a challenge led by Irish lawyer Simon McGarr) by the very same court that has now created a ‘right’ to obliterate history tells us that, at the very least, Europe’s approach to rights is at least inconsistent and, in my view, incoherent.

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