TWO MONTHS after a European Court of Justice ruling, the “right to be forgotten” is not looking too wise.
Complying with the court’s order, Google, which has received more than 70,000 “right to be forgotten” requests since May, this month began removing links to Web pages with “inadequate, irrelevant or no longer relevant” personal information from its European sites. But backlash ensued when it erased the links of several news articles from the Guardian, BBC and other British media outlets. A Guardian writer, echoing concerns of many, called it a “huge, if indirect, challenge to press freedom.” Others alleged that the removals are part of Google’s strategy to stir resistance against the ruling.
Publicity stunt or not, these deletions could have been predicted the moment the court handed down its vague, clumsy decision.
Take the three delinked Guardian articles on Dougie McDonald, a former Scottish soccer referee who lied about his reasons for granting a penalty kick. Google judged that Mr. McDonald — now retired — was no longer a public figure, so his privacy right trumped the public’s right to know. It deleted the articles from search results of Mr. McDonald’s name.
Most would disagree. Accounts of a recent soccer scandal should remain part of an easily accessible public record. Another case, in which Google removed a BBC article that explored a Merrill Lynch banker’s role in the financial crisis, raised another set of questions. There, a commenter on the article — not the banker — requested the deletion.
The court ruling offers no guidance in navigating these dilemmas. As we wrote two months ago, the opinion doesn’t define a “public figure” or the appropriate amount of time that would make information “no longer relevant.” Nor does it list the practical criterion of who constitutes a direct or indirect “data subject.”
Google has hired a team of paralegals to help sort through requests. But with 250,000 links contested so far, handling each request with care is virtually impossible. Google has no incentive to protect the free flow of information beyond its professed pledge to free expression. On the other hand, it has plenty of interest in approving deletions and avoiding complicated challenges by data protection agencies and courts.
The government and courts, not a company, should perform these balancing tests, if they must be done at all. Under the existing structure, we can expect more misjudgments — most of which, unlike the ones cited above, will go unnoticed.
There are other ways to protect privacy. Harvard professor Jonathan Zittrain has suggested allowing individuals more control over how search results of their names are displayed on the first page while maintaining separate, “unvarnished” result pages like the ones that now exist. Google News once allowed those quoted or mentioned in articles to write a comment next to them.
The E.U. Council is considering a regulation, passed by the European Parliament in March, formalizing what is now called a “right to erasure.” The law, among other things, would place the burden of proof on companies to prove that data cannot be deleted. This would exacerbate an already deleterious situation.
Britain’s justice minister, Simon Hughes, warned last week that this right is developing in a way that would “close down access to information in the E.U. which is open in the rest of the world.” The council should heed his words and learn from recent incidents. The integrity of Europe’s free flow of information is on the line.