Right to be forgotten: Google may hate it, but we're dangerously close to making it work

While the battle lines are being drawn up over the right to be forgotten, it seems we may be making the best of an imperfect system.
Written by Jo Best, Contributor
Thousands of people have already asked Google to remove them from search results. Image: Google

Last month, the right to be forgotten was enshrined in European law, thanks to a ruling by the European Court of Justice. Except it wasn't a right, you weren't forgotten, and it hasn't really been enshrined anywhere. Confused? You're not the only one.

In May, the ECJ ruled on the case of a Spanish national who had, over a decade ago, been involved in an auction of property to settle social security debts. When people Googled his name, newspaper stories about the auction appeared prominently in search results. The man thought that the information about him was outdated, and the court found in his favour, ruling that Google must no longer return links to those newspaper stories when his name is searched for. The newspaper articles remain online, and can be found through Google when other search terms are used.

The mechanism is not an outrageous one, and it has precedents in the offline world. When applying for a job, for example, individuals are often asked about any criminal convictions. They are legally bound to tell their potential employer about them for a certain amount of time, but for many types of conviction that duty will eventually expire and the individual no longer has to disclose it.

Nonetheless, the result of the ruling involving what one Spanish man did in the 1990s has potentially far-reaching consequences for internet use in Europe.

In some quarters, the ruling has been described as giving every European the right to be forgotten; in others, as bringing in a new wave of press censorship. In reality, it does neither.

The ruling allows Europeans to request that data controllers, like Google, remove links to outdated or irrelevant information when searches are performed for their names. In the event the request is found to be justified, links will be removed from results returned for searches on that person's name, but the original source material will remain online and can be found through other queries. Data controllers still have the right to refuse requests when they feel the links in question are still pertinent for searches on an individual's name.

However, since Google opened a web form for people to request search result removal, tens of thousands of people have asked the search company to do just that.

The first removals

This week, the first such removals began to come to light. Large news organisations such as the BBC and The Guardian, along with more smaller B2B outlets, all reported Google had contacted them to let them know they were subject to removals, while Google users began to see messages that certain search results "may have been removed under European data protection legislation".

A handful of recent 'right to be forgotten' removals were highlighted by The Guardian on Thursday. According to the paper, Google had alerted it that six articles would no longer be returned in search results for individuals' names. The names were not disclosed, although three articles referred to a Scottish referee, while another was a sweet story about French office workers making art from Post-It notes on their workplace windows.

Yet both cases illustrate the flaws in the system. Is the information in the story about the referee no longer relevant after three years? Is a system ostensibly meant to protect people's privacy being wasted on individuals who once happily told journalists about their creative ways of wasting office stationery?

It's a similar story over at the BBC. The BBC reports one of its articles involving the former head of Merrill Lynch Stan O'Neal no longer appeared in search results for a certain name. That name isn't, as you might have expected, Stan O'Neal. Instead, it's thought that the request is linked to a name in the comments section.

Was it right to do so?

The wider question is, perhaps, when does that information become outdated in relation to its subject? These are difficult questions for anyone, even those with an interest in how to balance the right of citizens to a private life with the freedom of the press and individuals' right to information.

The fact that Google decided to restore the links to the Scottish referee and other stories on the same day it removed them suggests that it has not yet got a handle on best practice for when these links should be disappeared.

Google said: "We have recently started taking action on the removals requests we’ve received after the European Court of Justice decision. This is a new and evolving process for us. We’ll continue to listen to feedback and will also work with data protection authorities and others as we comply with the ruling."

Robert Peston, the author of the BBC story on Stan O'Neal that was removed, speculates that rather than have Google make the call, such decisions would be better left to journalists and their publishers.

It already seems that's the case. Tthe furore around the removal requests has pushed the removed links, and their subjects, back into the spotlight — exactly the opposite of what the subjects were trying to achieve, and a perfect example of how the Streisand effect works online.

Journalists appear to be showing some common sense with regards to their subjects — while the referee and Merrill Lynch boss have been repeatedly highlighted, an article involving a man found not guilty of fraud has been largely ignored. Perhaps Peston was right after all — journalists may yet make better arbiters on right to be forgotten cases than Google.

How to handle requests

In defence of both the ruling and Google, however, there is no official advice yet on how to handle removals requests, as local European data watchdogs are yet to publish guidance on the matter.

Neil Cameron, a management consultant specialising in IT and director of the Neil Cameron Consulting Group, didn't pull his punches about Google's ability to deliver good decisions on right to be forgotten requests at a House of Lords select committe hearing on the matter.

"I trust Google to exercise that judgement even less than I trust the European Court of Justice… I don't trust their judgement, I don't think they're geared up for it, and I think they're primarily an American corporation that doesn't understand what personal data protection means anyway... I don't have a lot of time for Google and I don't think it's an appropriate place to put that onus."

Google has hired what's been described as an "army of paralegals" to help process the requests, though yesterday's U-turn suggests even with those legal minds onboard, the company is still failing to get to grips with the process. That's perhaps no surprise, given both the speed with which it's acted — it's only six weeks since the court handed down its decision — and the volume of requests it's received since then, now thought to number more than 70,000.

As Jim Killock, executive director of the Open Rights Group, noted, the original ECJ ruling should apply only to a small set of people and is very much in line with Google's own interests.

"Google strives to provide relevant results. Its whole purpose is to give you information which is meaningful, useful, and up to date so the [ECJ] is identifying a circumstance that, according to Google's business model, ought to be very rare," he told the Lords hearing this week.

In the case of the Spanish man, an event from 12 years ago was appearing at the top of his search results, making it became very easy for Google users to find something that was "old and not relevant to his current circumstances. For most people, that's not going to be the case... It ought to be a very narrow set of circumstances when this right get exercised."

As much as Google has objected to the ECJ ruling, it would appear to be entirely in keeping with its own modus operandi.

You'd be forgiven for feeling queasy at the thought of results for 70,000 searches potentially being altered might, but remember that Google's algorithms are constantly reviewed and altered — what we see today for a particular search is not necessarily what we will see tomorrow.

As the whole discussion over right to be forgotten removals have shown, we think of Google as a utility. It's our gatekeeper to the web — when it buries links, that content might as well disappear altogether. If the ECJ ruling is tantamount to censorship, so are Google's own practices.

The only difference between Google's everyday algorithm reshuffling and ECJ removals is that in the latter case decision-taking will mostly be done by humans and the public will likely be made aware of the consequences by journalists revealing when the rich and famous are trying to bury their pasts. That, to me, would seem a step forward.

CORRECTION: This story was updated to reflect an incorrect attribution of a quote. The quote attributed to Neil Cameron was initially incorrectly attributed to Luciano Floridi, a professor at Oxford University.

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