The 'Right to be Forgotten' - Again

In 2014, after a blistering Blog attack on the logic of the ECJ Google ruling on the ‘right to be forgotten’, I was invited as one of only four ‘expert’ witnesses to give evidence to the House of Lords EU Sub-Committee F – Hearing on the ‘Right to be Forgotten’.

See the transcript of evidence here, and the report here.

Broadly speaking I was the only witness arguing against some key elements of the ‘right to be forgotten’. I was not against some elements of data culling, but my basic point was that the European Court of Justice had failed to set the balance between the right of protection of personal data against the public’s right to know about information that was fundamentally more ‘news’ (or ‘history’) than ‘personal data’. It is somewhat surprising that it fell upon me to make this argument alone, and that there was no better qualified advocate of fundamental press freedom than me available – but there we are.

I made the point that in two years we have moved from EU Data Commissioner Viviane Reding’s original definition of what the proposed EU right to be forgotten would be covering, which was expressed as:

"Another important way to give people control over their data: the right to be forgotten. I want to explicitly clarify that people shall have the right -- and not only the 'possibility' -- to withdraw their consent to the processing of the personal data they have given out themselves” (my emphasis)

…to the ECJ Google judgement which has established a process for removing from Web searches truthful and accurate news reporting on issues of public interest. This is a huge leap, and the EU is now proposing to extend the ‘right to be forgotten’.

I have no problem with Reding’s original definition, and even of extending this to unfair, malicious and unreasonable copying & reposting, or posting, of personal information of no journalistic merit.

But I have a real issue with the sweeping and broad approach taken by the ECJ. As I said in that earlier Blog, I far refer the perspicacious and wise opinion of the Court’s Advocate General Jääskinen on the issues.

One of the other key problems, is that by proceeding against Google – rather than the original publishers of the ‘offending’ news articles the Court completely failed to consider the vital exemption to the principle of the right to forget of the public’s right to know, viz:

“…provides for exemptions or derogations from the rules on protecting personal data where that data is used solely for journalistic purposes or for artistic or literary expression. However, these exemptions apply only if it is necessary to reconcile the right to privacy with the rules governing the freedom of expression. Such provisions must be applied in accordance with law and must respect the principle of proportionality in a democratic society.”

So – there is a balance to be struck, but because Google (whether it is a ‘data controller’ or not) is not a news medium, this vital exemption was not considered by the Court at all in the Spanish Google case. Whereas, if the data subject in that instance had sued the original publishers of what were, after all, truthful reports of legal proceedings, it would have had to consider this issue and might have come to more appropriate conclusions, and in the process may have delivered some very badly needed guidance about how that balance should be adjudged.

As it is – they then arrogated to Google, of all people, to come to a judgement in each case about what is in the public interest. This is arbitrary, inappropriate and furthermore, it is futile – as simply transferring your searches to a non-EU Google search engine can reveal the supposed censored links.

As I said to the Committee – if you do not remember history you are condemned to repeat it. Personal data is not news, unless it is news – and if it is news it is part of the story of the human race and as such there is a public interest in having a collective memory of it. Anything else, in the words of Advocate General Jääskinen, “would amount to falsification of history”.

After the ECJ judgement, we had many instances of Web news articles referring to the behaviour and conduct of massive global corporations and its key officers, as well as thousands of dishonest individuals – clearly in the public interest, which Google has deleted after acceding to a removal request; in another demonstration of how far we have come from Reding’s original definition of the ‘right to be forgotten’.

This week’s Project Counsel Media Report tells a story of how much we have ‘advanced’ since then. Not only do criminals get to use the right to be forgotten to whitewash their past and change the past, they are also employing ‘social engineers’ to further confuse history by seeding the Web with fake websites using the same name as the offender but with anodyne imaginary details.

We really need to pause and take stock and consider whether we have already gone much too far in the direction of altering recorded history against the public interest, and not extend the ‘right to be forgotten’ beyond data of a purely ‘personal’ character.