The Latest on the EU’s “Right to Be Forgotten”

“[T]he incongruity of having Google – or any private party, for that matter – as a decision maker about rights. To place Google in that role is to diminish Europe’s sovereign power, not enhance it, even if the role is compelled by European authorities. It turns a rights problem into a customer service issue, and one that Google and others in its position no doubt rightly disdain. If Google can process 70,000 requests, so can and should the data protection authorities. And not every public decision needs the full, lawyer-heavy trial format to be sufficient to the cause – any more than Google is using it now. This would place decisions about rights in the public sphere where they belong, and limit the scope to the sovereign’s jurisdiction, so a European decision would still not affect use beyond the relevant country-specific Google portals.”

— Professor Zittrain also puts forward the sensible proposal that redactions pursuant to the “right to be forgotten” be limited in duration, with claimants required to pursue renewals – after all, information not relevant today for public policy purposes could become so tomorrow.

“[T]he European court found that people have the right to ask for information to be removed from search results that include their names if it is ‘inadequate, irrelevant or no longer relevant, or excessive’. In deciding what to remove search engines must also have regard to the public interest. These are, of course, very vague and subjective tests . . . [W]e obviously respect the court’s authority and are doing our very best to comply quickly and responsibly. It’s a huge task, as we’ve had over 70,000 take-down requests covering 250,000 web pages since May. So we now have a team of people reviewing each application individually, in most cases with limited information and almost no context . . . When it comes to determining what’s in the public interest, we’re taking into account a number of factors. These include whether the information relates to a politician, celebrity or other public figure; if the material comes from a reputable news source, and how recent it is; whether it involves political speech; questions of professional conduct that might be relevant to consumers; the involvement of criminal convictions that are not yet ‘spent’; and if the information is being published by a government. But these will always be difficult and debatable judgments.”

“The issue with the ECJ judgement isn’t European privacy law, or the response by Google. The real problem is the impossibility of an accountable, transparent, and effective censorship regime in the digital age, and the inevitable collateral damage borne of any attempt to create one, even from the best intentions. The ECJ could have formulated a decision that would have placed Google under the jurisdiction of the EU’s data protection law, and protected the free speech rights of publishers. Instead, the court has created a vague and unappealable model, where Internet intermediaries must censor their own references to publicly available information in the name of privacy, with little guidance or obligation to balance the needs of free expression. That won’t work in keeping that information private, and will make matters worse in the global battle against state censorship.”

07/9/2014: