The Right to Be Forgotten: Another Case of Unintended Consequences

In 25 years in a strange career at the intersection between technology and legislation, compliance, and regulation, I have seen many curious things.  Most of these curious things center around the lag time associated with radical technological innovation and the often well-intended but misguided responses of policymakers to the implications of that innovation.  In most instances, the Law of Unintended Consequences rears its ugly head.

The recent “Right to Be Forgotten” pronouncement in Europe is a perfect example.  For those unfamiliar with the case, it centers around a decision on May 13 by the EU’s Court of Justice to side with Spain’s data protection regulator in ordering Google to remove a link to a newspaper notice that popped up on a search on Mario Costeja Gonzalez, a calligraphy expert whose house had been sold a number of years previously to pay off debt.  Mr. Gonzalez maintained that the continued appearance of articles in search engines about this many years after the fact resulted in “constantly having to explain that I had no debt and show documents to prove it was true.” (See a list of news references describing this case at the end of this post).

Now we can all appreciate the desire to get rid of Internet artifacts that perhaps do not reflect our best side and the need for information privacy and security. I constantly live in great appreciation and gratitude that the Internet and digital photos did not exist whilst I was in college. [Note to college acquaintances:  Please remember this in posting comments.]

But does the “solution” now required by the European Court of Justice (where does one appeal this?) meet the test of avoiding unintended consequences?  And if this right does exist, where does the responsibility for takedown action lie?  With search engines, which are essentially the card catalogs of the web, albeit ones that are more powerful than we could have ever anticipated? Or with those posting the content in the first place (assuming that it is indeed inaccurate or libelous)?  Do we really want search engine companies -- compounded and influenced by political pressures from governments not as well-intended as those in Europe -- in the business of deciding what we can and cannot see?

A recent TWIG (This Week in Google) show -- one of my favorite nerd affectations given that I need to strategically hide the fact that I was a history/economics major, not really a technical guy – covered this issue well.  TWIG 257, “Future Babies” featured an interesting interview with Danny O’Brian of the Electronic Frontier Foundation on the mess that is in the process of being created by the recently announced “Right to be Forgotten” case.

Danny O’Brian makes the point (In “Rights That Are Being Forgotten: Google, the ECJ, and Free Expression”) that there are three real victims in this case and in how Google has subsequently (intentionally?) responded to the ruling (spoiler alert – the victims ain’t Mr. Gonzalez or Google).  A few excerpts:

1. “The first victim of Google’s implementation of the ECJ decision is transparency under censorship.  Back in 2002—in the wake of bad publicity following the company’s removal of content critical of the Church of Scientology—Google established a policy of informing users when content was missing from search engine results…Google’s user notification warnings have now been rendered useless for providing any clear indication of censored content.”
2. “The second victim of Google’s ECJ implementation is fairness. After Google informed major news media like the Guardian UK and BBC that they were being censored, those sites noted—correctly—that legitimate journalism was being silenced. Google subsequently restored some of the news stories it had been told to remove. Will Google review its decisions when smaller media, such as bloggers, complain?”
3. “Which brings us to the third victim: Europe's privacy law itself.  Europe's privacy regime has long been a model for effective and reasonable governance of privacy…tying the data protection regulation to censorship risks discrediting its aims and impugning its practicality.”

“Rights That Are Being Forgotten: Google, the ECJ, and Free Expression” is worth reading and thinking about in considering the intersection between technology innovation and technology regulation.  Think about it and the Law of Unintended Consequences as you think about other emerging issues.