It’s not the end of the world as we know it….

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Over the weekend, I was asked by CNN if I would be able to write something about the ruling that was due on the right to be forgotten – it was expected on Tuesday, they told me. I said yes, partly because I’m a bit of a sucker for a media gig, and partly because I thought it would be easy. After all, we all knew what the CJEU was going to say – the Advocate-General’s opinion in June last year had been clear and, frankly, rather dull, absolving Google of responsibility for the data on third party websites and denying the existence of the right to be forgotten.

On Monday, which was a relatively free day for me, I drafted something up on the assumption that the ruling would follow the AG’s opinion, as they generally do. On Tuesday morning, however, when the ruling came out, all hell broke loose. When I saw the press release I was doing a little shopping – and I actually ran back from the shops straight home to try to digest what the ruling meant. I certainly hadn’t expected this – and I don’t know anyone in the field who had. The ruling was strong and unequivocally against Google – and it said, clearly and simply, that we do have a right to be forgotten.

I rewrote the piece for CNN – it’s here – and the main feeling I had was that this would really shake things up. I still think that – but that this isn’t the end of the world as we know it, despite some pretty apocalyptic suggestions going around the internet.

On the positive side, the ruling effectively says that individuals (and only individuals, not corporations, government bodies or other institutions) can ask Google to remove links (and not the stories themselves) that come up as a result of searches for their names. It’s a victory for the individual over the corporate – in one way. The most obvious negative side is that it could reduce our ability to find information about other individuals – but there are other risks attached too. Most of those concern what Google does next – and that’s something which, for the moment, Google seem to be keeping very close to their chest.

On the surface, Google’s legal options seem very limited – there’s no obvious route of appeal, as the CJEU is the highest court. If they don’t comply, they could find themselves losing case after case after case – and there could be thousands of cases. There are already more than 200 in Spain alone, and this ruling effectively applies throughout Europe. If they do choose to comply, how will they do so? Will they create a mechanism to allow individuals to ask for things to be unlinked automatically? Will they ‘over-censor’ by taking things down at a simple request – they already do something rather like that when YouTube videos are accused of breaching copyright?

My suspicion that one thing they will do is to tweak their algorithm to reduce the number of possible cases – they will look at the kinds of search results that are likely to trigger requests, and try to reduce those automatically. That could mean, for example, setting their systems so that older stories have even less priority than before – producing an effect similar to Viktor Mayer-Schönberger’s ‘expiry dates’ for data, something that in my opinion might well be beneficial in the main. It could also mean, however, placing less priority on things like insolvency actions (the specific case that the ruling arose from was about debts) or other financial events, which would not have such a beneficial effect. Indeed, it could well be seen as detrimental.

The bigger risk, however, is to Google’s business model. Complying with this ruling could end up very costly – it effectively asks Google to make a kind of judgment call of privacy vs public interest, and making those kinds of calls is very difficult algorithmically. It might mean employing people – and people are expensive and slow… and reduce profits.  Threatening Google’s business model doesn’t just threaten Google’s shareholders – it threatens the whole ‘free services for data’ approach to the net, and that’s something we all (in general) benefit from. I don’t currently think this threat is that big – but we’re still digesting the possibilities, I think.

One other possible result – in the longer term – which I would hope to see (though I’m not holding my breath) is less of a reliance on search, and on Google in particular. There are other ways to find information on the internet, ways that this ruling would not have an impact on. One of the most direct is crowdsourcing via something like Twitter – these days I get more of my information through Twitter than I do through Google. If you have a body of informed, intelligent and helpful people out there who are scouring the internet for information in their own particular way, they can supply you in a very different way to Google. They can bypass the filters that Google already put in place, and the biases that Google has (but pretends not to have) – with your own connections there are of course other biases but they’re more obvious and out in the open.

Indeed, I would also hope that this ruling is the start of our having a more objective view of what Google is – though the reactions of some that this ruling is the end of the world suggest rather the opposite. Further, we should start to think more about the kind of internet we want to have – and how to get it. I would hope that those bemoaning the censorship that this ruling might bring are equally angry about the censorship that our government in the UK, and many others around the world, have already brought in inside the Trojan Horse of ‘porn filters’. That kind of censorship, in my opinion, offers far more of a threat to freedom of expression than the idea of a right to be forgotten. If we’re really keen on freedom of expression, we should be up in arms about that – but we mostly seem to be acquiescing to it with barely a murmur.

What this ruling actually results in is yet to be seen – but if we’re positive and creative it can be something positive rather than something negative. It should be seen as a start, and not an end.

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18 thoughts on “It’s not the end of the world as we know it….

  1. If it applies in the online world, then it won’t be long before it applies in the offline world – this is the equivalent of burning heretical books – you don’t like your past, so you prevent a search engine making that past public – next stop the source of that information – the press library, the card-index system, the court documents, the membership papers of an organisation that you are now embarrassed to be associated with (young Conservatives, young Liberals, young Socialists, young Nazis, young Maoists – who says which of these can safely be forgotten).

    This is a bad law – it is an attack on press freedom, freedom of speech and freedom of information. If people don’t want to see search results they find embarrassing, they shouldn’t be so vain as to search for information about themselves – the only filter google needs to apply is one that prevents such people using its system.

    • The issue’s a little more complex than that – it’s when potential employers search for you and make unfair decisions and so forth. No time to write more, but there will be more to say!

      • Nothing you can do about people making ‘unfair’ decisions (often the perception of lack of fairness is purely subjective) – would suggest if an employer is the type to hold something against you from 20 years ago, they are not worth working with. Who is to say what is accurate, relevant, timely – might seem trivial and outdated to some but in context it might suddenly become very relevant again.

      • The question of who makes the decision, and how, is indeed crucial. It’ll take us time to work out quite how this might work – and whether or not it’s going to end up either being effective or being destructive of the internet.

  2. There needs to be a balance between say, a person’s right to be forgotten when they create content that contains information about themselves and other people, and the ability for one person to request that (true and accurate and created by someone else) information about them be removed from the Internet because it shows them in a bad light.

    The irony is that the Spanish guy in question, is now named all over the Web, highlighting information that he fought to have removed.

    While everyone says Google can afford to implement costly technology to comply with whatever comes of this, it could make it cost prohibitive for new search engines to enter the market, thereby making Google’s position even stronger. And I’m confident that these rulings will extend to websites such as Twitter – websites that “link” to content on other websites. While I also hope people will rely less on Google, we will always need a way to find the longtail of information on the Web – which includes “old” content, which by the way, is just as important to some people as “fresh” content is to others. That is the entire point and benefit of the Web.

    Perhaps someone could quickly archive the web and build a people search engine on top before everything is removed or becomes impossible to find.

    • I think it’s important to understand that the information isn’t being removed from the internet – it’s just one particular set of possible links to the information that are being prevented from being created, the links created by a search for the person’s name. In the case of the Spanish man, for example, the notice in the newspaper will still exist online, and will even be locatable via Google, for example via a search for ‘real estate auction notices Spain’. That makes this a significantly narrower ruling than might immediately appear.

      It’s also highly unlikely that the ruling would or could extend to sites like twitter – except for automatically generated links via a twitter search in similar terms. If you create a link yourself, that’s totally different, and wouldn’t come under this kind of legislation at all.

      There ARE risks attached to this idea, but they’re not nearly as catastrophic as some reports are making out.

      • I fully understand that it’s related to links only. And I agree that it’s not as bad as people make out. But, I think it could be worse than some people think also. It “could” be extended to sites like Twitter in the future. Think of this ruling as being the Trojan horse to potentially more awful rulings.

      • That certainly has to be considered as a possibility! All the more reason to get the data protection regime reform pushed through in a coherent and less ‘interpretable’ form, and soon.

      • Agreed. When I researched online privacy as Chair of http://bima.co.uk and because I was looking to build a product around it (in 2005 – pretty damn early if I do say so), I found that Ireland had advanced further than any other country in the world – so far that they were the only ones to describe the difference between a privacy policy and privacy statement and where on a site you should link to your statement, which was mandated by law. However, in having such strong ideals in privacy and data protection, they are behind the UK with respect to protecting children online as the law prohibits the sharing of known illegal sites that contain children being abused. So there is also balance to be had between different laws and policies etc. There must be room for common sense.

  3. … and we already have laws that protect people from slander etc. so these should be exercised. These judges clearly don’t understand the potential chain reaction of their decisions.

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