The “Right to be Forgotten” – the implementation devil rears its head

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July 4, 2014 by Paul Goldsmith

 

When the European Court of Justice (ECJ) made its “Right to be Forgotten judgement” back in May I warned that “the devil will be in how it is interpreted and implemented rather than what it actually says.” This, remember, is is judgement that Google must delete “inadequate, irrelevant or no longer relevant” data from its results when a member of the public requests it (click here to read what I wrote about it). Well now the devil has raised its head in a worrying way.

The BBC Economics Editor Robert Peston received an email yesterday containing the following:

Notice of removal from Google Search: we regret to inform you that we are no longer able to show the following pages from your website in response to certain searches on European versions of Google:

http://www.bbc.co.uk/blogs/legacy/thereporters/robertpeston/2007/10/merrills_mess.html

What it means is that a blog Peston wrote in 2007 will no longer be findable when searching on Google in Europe. Which means that to all intents and purposes the article has been removed from the public record, given that Google is the route to information and stories for most people.

Google has responded to someone’s request to be forgotten. Peston looked at the blog and found out that only one individual was named in it – Stan O’Neal, who is the former boss of Merrill Lynch, the investment bank. The column describes how O’Neal was forced out of Merrill when it had made colossal losses on some reckless investments. So, is google saying that it has judged that it is not relevant for the track record of Stan O’Neal, a business leader who played an important role in the worst financial crisis in living memory, to be on public record.

It looks to Peston, and to many others, that Google is confirming the fears of many in the industry that the “right to be forgotten” will be abused to curb freedom of expression and to suppress legitimate journalism that is in the public interest.

So Peston decided to appeal the decision, wondering if this is just teething problems for a company that has received 50,000 requests over the last week for articles to be moved from European search engines, and have had to hire an army of paralegals to sift through them. But Google doesn’t seem to have an appeal system.

Even more intriguing is that when Peston contacted Google to ask who had requested it – they were not able to tell him. He is searching for the name ‘Stan O’Neal’ and still getting the blog article, so it may not have been O’Neal who made the request. The implication is that oblivion was requested not by anyone who appears in the blog itself but by someone named in the comments written by readers underneath the blog. Google won’t tell Peston who has requested it, one way or another.

Which takes me back to my fear that “the devil will be in how it is interpreted and implemented rather than what it actually says.” I just hope Peston’s experience really are just teething problems – or we’ve just seen the tip of a massively illiberal iceberg.

 

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