Thursday, March 08, 2018

Should we really have a "right to be forgotten" on the internet?

Back in 2014, the European Union (EU) passed a rather controversial law which has become known as "the right to be forgotten", which gives EU citizens the right to ask Google and other search engines to remove or de-list specific search results that concern them, to remove what the law calls "inadequate, irrelevant or no longer relevant" material. Google, which indexes literally trillions of web pages, has been asked to do this some 650,000 million times since the landmark European law was passed, involving the consideration of about 2.4 million links. It now has a whole department devoted to that task, looking at cases in all the various languages of Europe.
Other courts, including those in the USA, Colombia and Chile, have been asked to consider the same problem, and have returned the exact opposite opinion, ruling that freedom of expression and free access to information trumps the rights of individual privacy. Canada is currently considering a similar "right of erasure", and its top court will have to decide whether such a law would be consistent with Canada's Charter rights. (Canada's relevant legal criteria are slightly different from those in Europe, in that it requires companies to use "accurate and up to date information", but the problem is essentially the same.) And, as an interview with Google's Global Privacy Council, Richard Fleisher, makes clear, this is a particularly complex and knotty problem which does not have any one clear solution, the EU decision notwithstanding.
Fleisher begins by describing the case that led to the EU law, which involved a Spanish businessman who failed to pay his taxes and had his assets seized by the state. Fed up with Google searches still bringing up this unfortunate incident many years later, the Spaniard sued Google and, unexpectedly in the view of many, won. The story was not "false news", the incident actually happened, and the newspapers at the time were quite within their rights to cover the story - and are even within their rights to keep that stories in their online archives today - but Google has been handed the responsibility of taking off their links to those sites.
This puts Google in the position of having to act as arbiter, and somehow balancing the individual's right to privacy with the public's right to access to information, an unenviable position if ever there was one. As Mr. Fleisher puts it, the European Court of Justice has effectively outsourced the balancing of these rights to a private company (or, more accurately, several private companies, who might well come to different decisions on individual cases). In practice, Google estimates that, in applying the rules the European court has handed it, it has agreed to "forget" about 43% of the cases it has been asked to consider, and other search engines report similar rates, although Fleisher stresses that Google does not do this lightly, and only does what it must in order to comply with local laws. It should also be noted that exactly the same search in Canada would not de-list the result, only in Europe, where the law is in force: the articles are not erased from the internet, they just do not appear in searches conducted in the region in question.
To me, the law seems ass-backwards. Google, and Bing and all the rest of them, should not have to serve as arbiter in these matters. If someone objects to something about them on the internet, surely it should be their responsibility to take the matter up with the originating websites, whether it be a newspaper site or whatever. There are already procedures in place for just this kind of thing on most social media platforms, YouTube, etc. It seems to me that the Spanish businessman, and many others like him, is happy to have derogatory articles about him floating about the Internet, but just wants to make Google's life a misery, for no good reason.

No comments: