Politics

What's wrong with the "right to be forgotten?"

Peers have said that the controversial EU ruling can't, and shouldn't, work

July 30, 2014
Users who think they've won a new right may be in for a nasty shock
Users who think they've won a new right may be in for a nasty shock

A group of peers has said that the so-called “right to be forgotten,” which lets internet users ask internet search providers like Google to bury outdated information relating to them, is both wrong in principle and unworkable in practice.

Following a ruling of the European Court of Justice (an EU body) on the 13th May of this year, the new remedy allows anyone to ask an internet search provider to stop information about them coming up in certain searches, if the information is “inadequate, irrelevant... or excessive.” For example, you might want to hide references to lawsuits which have now been resolved.

The search engine must process the complaint itself, deciding if it has a responsibility to remove the information, and then carry out the removal.

Today, the House of Lords Home Affairs, Health and Education EU Sub-Committee published a report criticising the ruling, an especially significant move because negotiations are underway on new EU data protection regulation. The terms of such regulation will influence the way the “right to be forgotten” continues to be implemented, and the Committee hopes to influence the UK government’s negotiating position.

Here are four problems with the Court's ruling which the Committee identified.

The ruling is based on outdated legislation The data protection laws on which the Court based this ruling date from 1995. In 1995 you were more likely to be debating whether Blur were better than Oasis than questioning the impact of the internet on our right to privacy. The committee notes that “In the twenty years since the Directive was negotiated, the technology in the collection, storing and availability of data has changed out of all recognition.” It may have seemed feasible to develop such a right when legislators consulted with their advisors back then (no doubt using massive, brick-sized phones). Now, says the committee, it is not.

There is no “right to be forgotten” Simon Hughes, the Justice and Civil Liberties Minister, told the Lords committee that the phrase generally used to describe the ruling is, “an inaccurate and unhelpful gloss on what happened.” As the Lords' report points out, there has in practice been no way for complainants to get rid of information about themselves  In the very best case scenario, they will make the information harder to find, but it will still exist. If it is a newspaper article, for example, it will still be accessible on the newspaper's website, or in hard copy. In the worst case scenario, asking to be “forgotten” will have the opposite of the intended effect. Mario Costeja Gonzalez, the Spanish National whose request for removal of information provoked the ruling in the first place, is unlikely to be forgotten by civil liberties campaigners, at least, for quite some time.

There is no need for prejudice The committee reckons that most people think information removed under the ruling has to be prejudicial to the person who complained: it must have some actual negative impact on their life. This is not so: the information only has to be seen to be “inadequate, irrelevant... or excessive.” In general, the rights of the complainant override the public interest and the interests of search engines. It seems ludicrously easy to get information buried under this ruling compared to how difficult it is, say, to obtain anonymity in a UK court.

The ruling is unduly harsh on search engines For all kinds of practical and economic reasons, this ruling is a massive burden on the operators of search engines like Google or Ask Jeeves. Google told the committee that it received 12,000 requests under the ruling in the first 24 hours, and by 30th June had received 70,000. As of 9th July it was receiving approximately 1000 a day. What's more, the processing of these requests requires more than just blind man hours. The ruling contains a rather oblique public interest exemption. While “as a rule” the complainant's right to have the information removed overrides the public interest, “particular reasons,” for example if the complainant is a prominent public figure, might lead the search engine not to comply with the request. A search engine's staff are not just deciding whether requests meet the basic criteria; these private companies are having to make complex moral judgements at a breathtaking rate. That doesn't serve the companies' economic interests, but it also doesn't serve the public interest.

The committee noted how hard it would be for small search engines to comply with the ruling, and said it was concerned about the impact on UK business, particularly SMEs.