Jacques Mattheij

Technology, Coding and Business

Defending The Right To Be Forgotten

One of the hotter topics of discussion at the moment is ‘The Right To Be Forgotten’. The basic idea is that individuals should have control over their online image.

Because ‘Google’ is now the front door to the web, for once the European Union got something right and concentrated not so much on the websites that may post items about a person but on the search services providers that caused the information to be found. After all, if Google is the front door of the web it no longer really matters what’s on the web, if you can’t find it via Google with a 10 second investment in time then it might as well not exist.

Predictably, Google disagreed and a lawsuit ensued culminating in an all out confrontation on the subject with the French CNIL.

On the one hand I find myself agreeing with Google, if the right-to-be-forgotten is implemented the way the EU wants it to be then the predictable result will be that the majority of the requests will be used as a whitewash for regimes, politicians and other people of power to shine up their image.

On the other hand, from the view of an individual that has done something wrong at some point in his or her life and that has through either a fine or a jail sentence paid their debt to society it is kind of annoying that they’ve been declared pretty much un-employable by Google or one of their lesser competitors.

So there has to be some kind of balance struck and it is extremely hard to codify such a balance in law.

I patently disagree with the ‘free speech’ arguments that are immediately bandied around, the way those are enshrined in the American Constitution is all fine and great but that is an American element and as such an American company doing business in Europe is perfectly within its rights to say that they don’t want French legal concepts to be made to act the world over then that should be mirrored by not bringing American style free speech into it either by forcing that concept upon the rest of the world. What’s good for the goose… If the subject is a resident of France then the French courts are clearly within their sphere of influence to make statements about that, if they wouldn’t be then by default we’d all be living under American law right now and that should be something limited to the citizens of the United States. And such a French ruling should extend to all arms of American corporations, especially if they are using their status of foreigner to play games of whack-a-mole with the local judicial entity. (Google in particular claims that ‘the right to be forgotten’ should then only apply to google.fr but that’s a very cheap trick in my opinion and one that is going to incense the court.) Search engine results aren’t ‘free speech’ to begin with in my opinion, they’re re-hashings of someone else’s speech (or - for the most part - writings) and what the courts are saying is that when it concerns their citizens they (and not some corporation) will determine what is and what is not legal when it comes to collating data, as it should be. Note that such a collection of links about a subject (if the subject is a natural person) constitutes a database in the sense of the EU DPD and there already are provisions in there that require the creators of such databases to comply with removal, correction and reporting requirements. So the right to be forgotten is a very basic interpretation of the EU DPD and it did not actually need any new laws at all.

If ‘the right to be forgotten’ is going to be useful then it should concentrate on the following:

  • It should only work for people, never for corporations or for people acting on behalf of a corporation in some capacity. So Royal Dutch Shell should not be able to use the right to be forgotten to whitewash it’s image with respect to for instance their deailings in Nigeria.

  • it should only work for those people whose lives are otherwise ‘unremarkable’, in other words they should not have claims to fame other than the particular entries that those requesters are asking to be ‘forgotten’. So if you are a famous pianist and you get a bad review then that’s unfortunate but it is simply a fact of life that not all reviews will be positive. Ditto for politicians and others who cherish the limelight but wish to remove certain items from their career history to make themselves look better. If you want to be in the public eye then everything that happens to you is fair game.

  • it should work across all properties owned by a search engine provider to avoid ‘shopping for a favorable law’ by search engine providers essentially doing an end-run around the rights afforded by governments to their citizens.

The right to be forgotten should be used as a scalpel rather than as a hammer and I feel with these relatively small modifications the spirit of the ‘right to be forgotten’ could be made to work and most of the criticism against it would be laid to rest.