Data Privacy

Right to be forgotten: When should free speech trump privacy?

We live in interesting and largely online times, when significant amounts of personal information about each and every one of us can be found with a quick internet search or two.

But the online us, our web doppelgänger, is not one whose slate can ever be wiped clean – the internet never forgets what we say, what we do and notable things that happen to us, good and bad, continue to live on in perpetuity.

Or it least they did until the right to be forgotten sprung into being two years ago.

That judgement, handed down in Spain to a man unhappy that reports of his years-old bankruptcy were still the top results for a search of his name in Google, allows people within the EU linked to stories or actions they find outdated or undesirable to apply to have them de-listed from the search engine’s results. So not taken down, not removed from the web entirely – but a lot harder to find as they won’t appear in searches on that person’s name.

Crucially, this did not initially apply to Google indexes worldwide – so a search result de-listed in the UK, for example, would still be visible to users searching on and – a loophole many exploited, and one essentially encouraged by the search giant.

But that has now come to a grinding halt after the French data protection authority fined Google €100,000 and ordered it to go even further, and block results for French people given the right to be forgotten from every domain, not just the French one.

In America, by contrast, what appears online is generally regarded as being free speech as protected by the First Amendment, and there are also statutes of limitation in US law, although these are extremely difficult to enforce online. The net result is that right to be forgotten has not gained traction there.

And this is where the arguments about free speech vs privacy smash into each other, with different but very similar parts of the same world held to differing accounts, and a verbal war being waged about what ultimately is more important – information that was once in the public domain staying there, or the rights of all of us to make mistakes and not be constantly reminded of them in the future?

Many, such as David Aaronovitch in the Times this week (£), claim that “Privacy rulings are striking at the heart of what we can find online” and “To me First Amendment rights should trump others,such as those to privacy, in almost every case because they alone make other rights possible. Freedom of speech and freedom of expression are the primary safeguards against secrecy, abuse of power and tyranny.”

The case in Europe is confused slightly, by those not fully across the legislation, with the new GDPR rules set to come in in 2018, which allow a personal right to forget as one of the core tenets. This allows anyone who has shared information with a company in the past to revoke permission to them to keep it, and to instruct the company to forget it. This, of course, with the other key elements (which you can read about in our blog) is a good thing for greater personal data control, which we fully support and which our app and platform will be compliant with from the outset.

But what of the European right to be forgotten, or more accurately de-listed, how do we square that with the immense opportunities that freedom to search and know have brought to each of us as well as the wider world?

Not to mention that limits on what individuals are allowed to be aware of in the world around them are more commonly associated with repressive regimes such as North Korea and China, rather than Western democracies?

It is easy to have sympathy for a young or foolish person, destined to have a moment of folly uncharacteristic of their general lifestyle haunt them around the web for decades to come, potentially costing them jobs and relationships (because nobody does anything significant any more without Googling, right?)

But it is that very power of Google in our lives that means we should be extremely wary of any increased algorithmic attempt to influence and shape our surroundings. Today it is a benign force used by sheepish individuals who want to re-craft their online persona – but can we guarantee results manipulation will only ever be at the behest of individuals, not governments? Of course we can’t.

As Aaronovitch notes, US companies such as Google are unaccountable over here, create their own rules and are big enough not to be intimidated by the rest of the world. Great when you’re on their side, not so great if you – or your country – fall foul.

So a Spanish decision kick-started right to be forgotten, and now France’s desire to protect its citizens is extending it. They’re countries broadly in line with Western thinking on human rights and other key issues – but would we be so blasé if one of those countries was Iran or Russia, whose views do not chime so well with ours?

This is why we should see this slow creep for what it is – an encroachment on our privacy rights, and one we should resist where we can.

It’s hard to summarise better than Aaronovitch does, as he concludes: “In the matter of the US domination of the internet, be very, very careful what you wish for.

“For one reason or another the Yanks have done a pretty good job of opening up the world of information and free expression. Is your plan really any better?”