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The monstrous ECJ ruling about “the right to be forgotten”

This is now several weeks’ old and I fear that coverage of this issue could fade in the usual 24/7 news cycle, but it deserves to be kept in public view, hopefully continuing to raise a stink. I am talking about a recent European Court of Justice ruling regarding whether a person/institution can demand that an online outfit such as Google can be made to remove material about said person/institution that is damaging, sensitive or highly personal. People are talking about the “right to be forgotten”. Note that the information doesn’t need to be libellous. Even if it is embarrassing but clearly true, a website can be required to remove it. This means that certain organisations and people – and you can think of the sort I mean – have an open opportunity to remove items about themselves that they dislike. It is a monstrous interference with freedom of speech and demonstrates just how badly Europe misses any sort of First Amendment protection of free speech (although as I pointed out the other day, even the US these days has defaulted).

There doesn’t appear to be a lot of anger about this from the media as a whole – there hasn’t been the kind of reaction that attended the Leveson Report, for example. It is easy for some faux civil libertarians to say, perhaps, that the ruling affects nasty, big – usually American – firms such as Google, but that supposition is foolish. Anyone with a website carrying information that someone might object to might face this problem. As for journalists trying to track down information about people and using online channels, this is a very damaging step. It stinks.

There are lots of reasons for objecting to how Europe is currently run and I want out of the EU, although unlike some of those who want to quit, want to do so for pro-freedom reasons, not due to nationalism or terror about immigrants. I have no illusions, of course, about national courts and parliaments in that they can be just as moronic in trying to oppress freedom of speech as a supranational one. We tend to forget that point. But national stupidity can be easier to circumvent than transnational stupidity. Anyone who takes civil liberties and freedom of speech issues seriously ought, in my judgement, to want to see the entire European superstate edifice crumble into dust. It won’t end assaults on freedom, but it will make such assaults less difficult to escape.

28 comments to The monstrous ECJ ruling about “the right to be forgotten”

  • CaptDMO

    “Right” to a mulligan, now that the inevitable political tide is changing?
    “Gosh, that sounded so hip and with-it back when I wrote it at “free” college.”
    “I even have the matching tattoos of the avatars, logos, and battle cries.”
    How about folks with stuff forever etched in the “convienient” interwebs” take up the SAME apology tour
    that certain other folks have had to endure, simply for speaking the truth?
    As far as I know, US)PP ACA doesn’t cover “free” tattoo removal/covers for self esteem, or employment related, issues, NOR recurring breast, facial, and botox “touch ups”.

  • PersonFromPorlock

    It has to be said again, that the European ideal is as much liberty as is compatible with good order – which is to say, none.

  • Mr Ed

    This is an extension of a trend, in the UK, the Rehabilitation of Offenders Act gives convicts a ‘right to lie’ in most job applications by omitting spent convictions. The sponsor of the original Act even boasted about the right to lie he had created as a unique aspect of the statute. Since spent convictions are inadmissible as evidence, a court considering a case simply ignores the truth of a conviction when considering a case.

    We should keep,the lampposts, they will be needed for illumination.

  • Very retired

    Any oligarchy sees things that increase it’s wealth and power as good, and anything that seeks to diminish them as bad.

    You have created a “soft” USSR, replacing the party nomenklatura with a tranzi infestation every bit as voracious and self-serving.

  • jamess

    Hopefully at some point the list of people and things they want to be forgotten will be made public…

  • Fred the Fourth

    Heck, what’r y’all so bent out of shape for? Ain’t no new idea. I’m positive I read about this just AGES ago, some device called a (hmm..) some kind of dent? no, “hole”, yeah, that’s it, “memory hole”. So no worries, folks (you know, TOP MEN) been thinking about this for a LONG time, I’m sure all the kinks and wrinkles have long since been ironed out.
    S’cuse me, I gotta run, there’s a 2-minute obligation coming up I just cant get out of…

  • Surely the global interconnected nature of the web makes this unenforceable?

  • Laird

    Just to put y’all on notice, the next time I decide to run for public office I’m going to demand that all my old Samizdata posts be removed.

  • Paul Marks

    This is a defence of corruption and a destruction of free speech – utterly evil. Now corrupt politicians (and so on) will be able to keep their conduct from the public (so they can continue to con and cheat the public).

    However, Google got into bed with “Progressive” politicians long ago (indeed from the start).

    You reap what you plant.

    And Mr Ed is correct.

    For many years people (including good people) said that we did not need to worry about principles of jurisprudence because “tradition” did that for us.

    They forget that “tradition” is (often) just principles that people do not know they are following – or why they are following them.

    Unless their is a clear statement (in legal jurisprudence – in legal PINCIPLE) that is it wrong to lie, then OF COURSE statutes (and other such) will introduce institutionalised lying.

    Relying on tradition to stop such things is folly – it is like relying on tradition to defend Freedom of Speech or Freedom of Contract.

    Tradition was proved to be a weak reed (in both of these areas) by the Act of 1965 in Britain – where expressing hateful opinions (on matters of race) was made a crime, and people were compelled to trade with other people whom they did not wish to trade with.

    Why not?

    After all proper jurisprudence (libertarian PRINCIPLES) are not taught (that would be “ideological”) – “tradition” will defend our liberties.

    Accept it will not.

    Even under Sir Robert Walpole it did not – hence the Act of Parliament giving the Lord Chamberlain the power to “license” plays (i.e. to ban any the government did not like).

    Good law must be in accord with correct principles (the non aggression principle – law must be the practical application of the non aggression principle in the circumstances of time and place) – and if that means “ideological” jurisprudence, so be it.

  • PeterT

    I agree with Jonathan’s post. But…before the internet redemption of past missteps and misfortunes came in part through these falling into oblivion, or at least into the mists of time. The internet never forgets however so I think it would be beneficial if there was some process for restoring ones reputation, even if the difficult information was not defamatory. If there is a problem then I am not sure what the solution is. Presumably it would consist of good deeds and such. Perhaps something similar to the process for ranking the quality of buyers and sellers on eBay.

  • staghounds

    Surveillance is great for us but not for you…

  • Bob

    The ruling, as I understand it, affects search engines, but not original websites and sources.
    There IS a real problem/incompatibility between even British notions of liberty and privacy, and the new “Internet never forgets” reality. For one example, see: http://www.bbc.co.uk/news/technology-27642792 The main problem his employer had wasn’t that he had an old Drink Drive conviction, it was that anyone could now easily SEE this. Thus his career is probably going to be blighted forever. The whole (good) idea of “spent convictions” becomes meaningless if the news articles on all convictions are freely available. In the old days, you had to make an enemy mad enough that they would trawl newspaper records to dig up dirt. So if you were not a politician or big company, you had a private past that effectively stayed private, after enough time. Maybe culture will adapt, but I suspect not. It will be “one strike, and you’re out of luck for life”. I’m not sure I like that at all.

    Bob.

  • CornFuzed

    What’s the big stink? The U.S. Congress has been doing this for many years. It’s called the Congressional Record. Of course it’s not actually a record of what really happens in Congress. It’s a make believe publication where members can claim to have said or done things they actually never said or did, or if they actually did say or do something they can eliminate or edit it at will. “Check the Record”!

  • Whenever a request-to-forget comes in, it will first be shunted to the applicable government. They will hoover up the forgettable data and store it away. After all, it’s like you do have something to hide! And it just might come in handy later.

    Not a valid exercise in How Not To Be Seen.

  • […] Pearce over at Samizdata. Nothing new really, but nicely summed […]

  • Laird

    If this ruling applied to governments I could support it.

  • Gareth

    The Spanish ruling is doubly perverse in that the newspaper isn’t obliged to delete their copy of the public notice, only google is. The reasoning for this is that the google index makes it convenient to find personal information but I fail to be convinced that this should carry any weight. It is convenient that there is a newspaper archive copy – should that be deleted too? Not yet…

    Even the argument that the notice is old (now 16 years) is irrelevant as far as google’s gathering of data goes because the google searchbots can keep pages up to date – the google version of the page isn’t as old as the original.

    PeterT said:

    The internet never forgets however so I think it would be beneficial if there was some process for restoring ones reputation, even if the difficult information was not defamatory. If there is a problem then I am not sure what the solution is.

    Keeping your nose clean is the old fashioned way of restoring your reputation. Two public notices published 16 years ago has given the complainant plenty of time to keep up to date with his taxes.

    Bob,

    That the state can allow you to hide some previous convictions does not sit well with me. Employers are being denied valuable information because the state has deemed them too thick to assess prospective employees fairly.

    You’ll never convince the public that criminals can be rehabilitated if you legislate to cover up the fact they were criminals in the first place. It is a counter-productive approach imo. The pendulum has swung too far in the direction of protecting people from the consequences of their actions.

  • CaptDMO

    “…I think it would be beneficial if there was some process for restoring ones reputation,..”

    I think it USED to be called ATONEMENT, but certain “style” books, as well as “New Rules” for modern “usage”, governing the dictionary and usurping the authority of the thesaurus, may have changed that.

  • Arnau

    It has to be said that most of the late 15M (one of the ‘occupy’ concept prequels in Spain) supporters roared in applause when this crap was passed. Nothing strange when the demands were of more state intervention…

  • Technically, it is now possible (maybe feasible is a better word) to find articles related to specific people or things (companies, products) and present them alongside an old notice, if they are appropriately tagged. Tagging can feasibly be done outside the organisation publishing the content and need not involve any effort on their part (except setting up a automated dohickey to go and find tagged information on demand).

    So the user experience could be that the prospective employer sees information related to the misdemeanour but published more recently anywhere on the Internet, including information that mitigates or helps demonstrate atonement for the misdemeanour.

    This could be done quite cheaply for all the parties, and without infringinging freespeech, but it is perhaps too late to dream up technical fixes. The authorities have spoken and the market is now working according to the one way true way – alternatives be damned.

    For techies: yes I’m thinking of semantic technologies, apis, social plugins, all of that.

  • Dave Walker

    Google (and other search engines) don’t hold the information, therefore they can’t delete it – they can only delete the pointers, which is about as effective as “security by obscurity” (ie, not very). Hmm – maybe there needs to be a parallel to Kerckhoff’s Principle, for search.

    Essentially, the fact that this absurd legislation is in effect, serves to illustrate the desperate need for legislative bodies to have more members with engineering and scientific backgrounds.

    Also, nobody seems to have picked up on the fact that many names are far from unique. Could I for example, successfully assert the “right to be forgotten” about a piece of information pertaining to one of my many namesakes, rather than to me? Is there a corollary “right to not be mistaken for someone who has the same name”?

    I’m genuinely surprised that Google has taken the approach it has, especially since processing all those forms has to have a human in the loop and will therefore not scale well. If I was in Google’s boots, I’d be considering that the Terms of Service for Google Search do not commit Google to actually provide a service, so another option would be to block access to Google Search for address ranges assigned to service providers for EU customers. Clearly, EU-origin advertising revenue is significant enough to Google that they haven’t countenanced this yet, but it wouldn’t surprise me if the likely costs associated with the “right to be forgotten” cause them to consider it.

  • Essentially, the fact that this absurd legislation is in effect, serves to illustrate the desperate need for legislative bodies to have more members with engineering and scientific backgrounds.

    Er, how about less legislating instead? :-)

  • James Waterton

    ConFuzed: you used to be able to do that with the Oz Federal Parliament hansard. A Country Party minister decades ago was well-known for peppering his responses to opposition questions with masses of incredibly obscure statistics to make his points. His colleagues thought he was some kind of autistic savant – but no. He just made the numbers up. A staffer of his would later amend hansard, substituting the dodgy stats with the real numbers (which often didn’t support his argument at all). But his point had already been won and everyone had long moved on.

    He got away with this trick for years.

    I’m sure the political classes love the idea of disappearing parts of their past in such a manner. Although, seeing how the internet works, I’m pretty certain some decentralised network outside of the ECJ’s jurisdiction will emerge with the express purpose of exposing the links Google and others are forced to remove from their searches.

  • Dave Walker

    Alisa: My view here, is that if legislative bodies had more engineers and scientists on them, they would at the very least act as a voice of reason regarding what could practically be legislated upon (to the effect that there is no virtue in enacting legislation which can’t be practically implemented), and by having a mindset bent more toward the pragmatic and practical (and certainly evidence-based) than the naively idealistic, their influence may naturally act to limit the amount of legislation proposed and passed.

    So, I think we’re approaching the same goal from slightly different angles…

  • Dave, your position seems to presuppose that the motives behind legislation necessarily coincide with its declared practical purposes – and I’m afraid that all too often that is not the case (I am being charitable). But even if/when that is the case, this still sounds to me like too technocratic and managerial approach to society and its functioning. Sorry, but personally I don’t want anyone – not even the cleverest and the most competent professionals – managing my life, including when “I” happen to be a global-scale business such as Google.

  • Mr Ed

    This is not legislation, but a court applying legislation (or rather, a Convention) in a manner that is characteristically broad with purposive intent.

  • Laird

    I’m confused about the impact of this ruling. The Q&A in Johnathan’s first link says:

    Q. What needs to happen for this to become law?

    A. All 28 member states of the European Union need to approve it.

    So does this ruling have any current applicability throughout the EU or not? Or is it only effective in Spain?

  • Mr Ed

    Laird, the shortish answer is that the European Court of Justice is the supreme court in the EU and EEA for the interpretation of EU law. Its function is not to hear appeals so much as to answer questions raised by courts in the EU as to what EU law means. It takes questions referred by the courts in member states of the EU as to what EU law means and then responds, sometimes answering, sometimes not, but leaving the implementation of its judgments to national courts in each member state. The ramifications of its judgments apply throughout the EU.

    The judgment in the specific case is in English here.

    You might read it and wonder if you are reading a piece of writing by some poor translation software, but the ECJ judgments pretty much all read like this one. The facts start at paragraph 14. 35 to 40 contain the ‘justification’ for the power grab. The answers to the ‘questions’ start at 41.