Should we have the right to be ‘forgotten online’?

History Forgotten, History Erased: EU Ruling marks massive win for Right to Privacy Campaigners

Last Tuesday’s EU Court of Justice ruling in favour of an individual’s ‘right to be forgotten’ feels like a harsh blow to Google.

The ruling, which establishes the search engine's role as a ‘data controller’ and as such does not extend to media institutions and other online publishers, has divided opinion amongst commentators.

Many are worried that by shifting the onus on Google as a controller of data, the EU could be throwing the baby out with the bath water in its attempt to protect press freedoms with the right to be forgotten.

Whilst Google is not responsible for the publication of content it has become a vital component of the online media melting pot and as such these distinctions matter.

Damaging attack or vital measure?

To some the ruling represents an outright attack on the indelible rights and freedoms upon which the Internet was built, perpetrated by an out of touch legal system that can’t see the wood for the trees in its quest to protect the rights of the individual. Others, no doubt, see it as a necessary move to curtail the power of powerful corporations over the rights of the individual citizen.

European Commission Vice-President Viviane Reding said the ruling would help to bring data protection laws out of the ‘digital stone age’, but many feel that the EU’s good intentions may have unintended consequences.

In many ways the EU Court of Justice’s ruling in favour of Mario Costeja Gonzalez (who, ironically, is now less likely to be forgotten than ever before) has largely pre-empted an impending legislative move from Brussels. The EU has already been involved in negotiations with its members to forge a new European law that enshrines an individual’s right to be forgotten. In this sense the outcome certainly didn’t come out of the blue. The extent to which Mr Gonzalez’s victory could represent a fundamental attack on the freedom of information has yet to be fully understood though.

Image credit: The Internet Vision

Practicalities 

The practicalities of processing right to be forgotten requests may largely depend on the numbers Google receives and the level of scrutiny it is expected to give to each individual case.

The Judges reassured that a public interest test would need to be applied, especially in cases where the individual is or has been active in public life. But with early indications that Google is already being inundated with requests there is speculation that the company could begin deferring judgement down to the national level, with state privacy agencies or information commissioners picking up the workload.

Wherever the responsibility lands, the jury is still out on the numbers and therefore the resources and funding needed to deal with the wave of new requests. Already there is talk of a ‘right to be forgotten’ tool in development, a sign perhaps that Google wants to automate the process as soon as possible. Although the flow of requests could well drop off considerably after a time it's just too early to tell the practical and financial affects this could have on the company.

Political sensitivities

Volume could only be half the problem though. It’s one thing to take down links to an embarrassing picture of last Christmas’s office party, but it’s another thing entirely to take down links to information that could later be deemed to have been in the public interest.

Recent requests involve a man convicted of possessing indecent images of children and a former politician seeking re-election, sending the digital commentariat into a spin. Even the British Prime Minister has stepped into the debate, expressing his own concern about the ruling. Differentiating between those cases that are politically or socially sensitive and those that are not is something Google will likely resist getting involved in.

Proactive monitoring

The idea that Google may now be obliged to delete search results at the requests of individuals isn’t completely shocking to anyone that has worked in digital marketing.

The company effectively removes millions of results from its search results that breach its own Webmaster Guidelines every year via manual penalties and requests made under the Digital Millennium Copyright Act also see millions more webpages removed from the SERPs. Then of course there are breaches of national law (eg anti-Nazi laws in Germany). For more information see the Chilling Effects project.

A significant problem for Google could emerge if it were ever required to actively monitor for new instances of links relating to previous right to be forgotten requests (it’s not uncommon for the same information to appear across multiple websites at the end of the day). In higher profile cases this could see Google forced into more and more of a policing role, something it has always resisted.

This scenario isn’t without precedent either. In January Google was ordered to effectively monitor for results contacting links to scandalous pictures of former F1 boss, Max Mosely, in France and Germany. The repercussions of this kind of proactive monitoring could well be far reaching. A worst case scenario is a situation in which large numbers of false positives begin to emerge. These are instances where Google ends up taking down positive search results inadvertently through bulk actions.

Undermining Public Trust

With the company processing millions of copyright infringement requests every year, one could argue that a few individuals demanding the ‘right to be forgotten’ wouldn’t really make that much of an impact. But the problem runs far deeper than logistics though.

The degree of credence Google, or any other search engine for that matter, places on the standard of its search results is fundamental to the service it provides. If large swathes of the information it provides is suddenly prone to pruning at the behest of offended individuals, then it could undermine public trust in the very idea of unprejudiced search results.

One could argue that Google has always applied bias to its search results, simply by setting the parameters of their own algorithms. Crucially though, they have always been seen as doing this with only the user experience in mind (at least by those who haven’t had the pleasure of working in SEO) or in the interests of copyright laws.

With the right of the individual to be forgotten creating an unpredictable and unknowable bias upon search results, there is a danger that the whole model could suddenly appear to be under attack. Regardless of how true this is will largely be irrelevant; it’s public perception that matters.

With search engines remaining the ubiquitous and dominant means of searching and serving up the information we desire, I doubt digital marketers and SEOs will see any serious seismic shifts in the coming months but there are larger things afoot here. The devil will ultimately lie in the detail.

Thanks to Joe Cox for sharing his thoughts and opinions in this blog post. Joe is Head of Content at Bristol based digital marketing company, Bespoke Digital. He has written extensively on social media and digital marketing. You can connect with him on Twitter or Google Plus.