Abstract
The threats from Europe’s right-to-be-forgotten legislation are being extended, with newspaper archives being edited and search engines receiving massive fines, says
Under the right-to-be-forgotten ruling, which was first approved by the European Court of Justice in 2014, EU citizens can ask search engines to remove links to information about them.
But in May, a Belgian court went further, it ruled that a newspaper archive should remove the name of a person from a 1994 article. It came after Rossel, the publishers of Belgium’s Le Soir newspaper, were sued by a member of the public who had been involved in a traffic accident and who demanded that all reference to the matter be expunged from the paper’s archives.
Belgium’s Cassation Court (the country’s main court of last resort) ruled that the right to be digitally forgotten formed part of the constitutionally guaranteed right to be left in peace in one’s private life. The Rossel group argued the ruling opened “the door to the rewriting of history”.
To recap on the story so far… the ECJ ruled, in 2014, that individuals who deemed information held about them to be “inadequate, irrelevant or no longer relevant” could request that search engines remove links to such data from searches. It did not matter whether the information was factually accurate, what mattered was that the person involved – and the search engine – considered the information to be no longer relevant about that individual.
The ECJ did include some limited protections for public interest – companies and governments cannot make these requests, only individuals – and the search engines must consider the role played by the person “in public life”. But the guidance is minimal. It is up to the search engine to decide whether the information constitutes something of public interest or not.
Initially, the ruling was thought to apply only in the European Union, which meant that anyone searching via, for example, Google.com could easily find deleted links even though they would not show up on European versions, such as Google.co.uk or Google.fr. However, European data authorities argued this was insufficient and, since March this year, Google has also introduced geolocation blocks to searches – meaning that if you use .com to search in France you would not see deleted links. Even then, this has not gone far enough for some.
The French regulator – the Commission Nationale de l’Informatique et des Libertes – fined Google 100,000 euros (US$111,700) in March this year for not delisting more widely. It argued the geolocation block was not sufficient and that the right to privacy should not depend simply on the place from where the search was being conducted. CNIL also argued that extending the right to be forgotten worldwide did not limit freedom of expression because the content itself is not actually deleted – it simply does not appear in search results. There is a flaw in this argument – which is that if the same thinking were applied by all countries, it could easily open the door for authoritarian regimes to whitewash the past everywhere.
“If French law applies globally,” wrote Google’s general counsel, Kent Walker, in a Le Monde op-ed following the appeal, “how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach? This order could lead to a global race to the bottom, harming access to information that is perfectly lawful to view in one’s own country. For example, this could prevent French citizens from seeing content that is perfectly legal in France. This is not just a hypothetical concern. We have received demands from governments to remove content globally on various grounds – and we have resisted, even if that has sometimes led to the blocking of our services.”
It’s certainly a dangerous move. Imagine Russia, China or Iran applying these principles. You can see it is not alarmist to suggest that allowing individuals to decide who sees what worldwide according to vaguely applied principles – and expunge fact from archives – is a major threat to our right to information, our right to privacy and our freedom of expression.
Over a half a million requests to be forgotten
Since the ruling, some 5542,868 requests have been made to Google (which accounts for 90% of searches in Europe) relating to 1,656,783 links (as of 31 August 2016). Google no longer gives detailed examples of links it has deleted but The Daily Telegraph reported in 2015 that some of the examples of requests for de-indexing their stories included:
A story about a British former convent girl jailed in France for running a ring of 600 call girls throughout Europe in 2003.
An article from 2008 about a former pupil from a leading boarding school who drove his car around the school grounds and crashed after a night out drinking.
A story which included a section from the “war plan” of Norwegian man Anders Behring Breivik to kill 100 people.
A story from The Telegraph’s property page on a family who gave up London life and moved to Devon.
