Right to be forgotten key to regulatory scrutiny of internet giants

On Tuesday, the European Court of Justice (ECJ) listened to arguments from Ireland and other parties over the scope of an important European Union data privacy provision, the “right to be forgotten”.

A significant element of EU privacy rights, now permanently cemented into the voluminous General Data Protection Regulation (GDPR), is the “right of erasure”. This provision guarantees the right to request that data that is inaccurate, outdated or irrelevant be removed by a data processor.

The controversy isn’t so much in the “right to erasure” element – the obligation on data processors to only hold on to current, relevant data. While it may be considered a time-consuming annoyance by companies to have to delete such information on request (and so what if it is? You have an obligation to securely and appropriately manage it and ensure it is correct), vexation here doesn’t stretch to controversy.

The larger dispute has arisen over search engines linking to data that is factually correct, in the interpretation of the right to be forgotten, as determined by ECJ in a defining case in 2014. The court said that a Spanish man whose property had been repossessed in 1998 and sold to recover his social security debts had the right to have the search engine links to archived newspaper articles about his case removed from Google.

Excessive information

The ECJ said people had the right to have information that was “inaccurate, inadequate, irrelevant or excessive” removed from search engine results. That right was dubbed the right to be forgotten and has since arisen in disputes in the national courts of EU member states.

The right is criticised by some – particularly in the US – as an infringement on free speech and an unwarranted inhibition on easily accessing information that is otherwise publicly available anyway.

This week’s ECJ hearing arises out of a case in France in which the French court has argued that Google must remove search links not just on Google’s French site, but globally.

In 2015, Google counsel Kent Walker warned: “No one country should be able to impose its rules on the citizens of another country, especially when it comes to linking to lawful content. Adopting such a rule would encourage other countries, including less democratic regimes, to try to impose their values on citizens in the rest of the world.”

Sounds good, doesn’t it? The Irish Government came in on just this side of the argument on Tuesday.

But this has always been a ridiculously sanctimonious and overblown position, as has much of the general opposition to the right to be forgotten.

Let’s pick apart the arguments of Google (and others) here. First off, the right to be forgotten in GDPR already has defined limits, and doesn’t apply to significant crimes, or to public figures such as politicians or corporate executives. So the argument that, say, paedophiles can have their convictions delisted is hogwash.

In addition, individuals have the right to request delistings, but Google refuses more than they approve (56 per cent), according to Google’s published reports.

What the right to be forgotten actually provides is “the right to have an imperfect past”, as Guardian columnist Suzanne Moore has argued. It allows people to erase easily-obtained links to minor or long-past infractions – some of which would by law be removed from the public record in many countries, but, thanks to the global internet, live on.

Imposing values

However, what really galls about Google’s 2015 statement is the notion that what we have to fear is other countries “impos[ing] their values on the rest of the world” when right here, right now, we are all dealing with these huge, secretive, technology multinationals and their platforms with global span imposing their values and their income-focused algorithms “on the rest of the world” and wanting no limitations or regulatory scrutiny on what they do and how they do it.

These are companies whose income is entirely derived from our personal data, which they gather and milk for profit in ways that are hardly “democratic” – almost completely hidden from us. They are companies that have been found to be poor caretakers of our data, offering it up with little oversight to dubious third parties, selling it to data brokers, and in some access allegedly passing it along in bulk to national spy agencies.

They are companies whose ability to link to every single small thing about us far exceeds – quite literally – what 10 Stasi agents could produce after days of closely spying on an individual, companies that often do not listen to human rights defenders across the world when they try to tell them of weaknesses in their products or platforms, that risk exposing activists in those “less democratic regimes”.

The utter irony of adopting the search engines’ argument that the right to be forgotten infringes “free speech” and is somehow undemocratic accepts the preposterous notion that such platforms are neutral, not-for-profit good guys.

They aren’t.

As France’s lawyers argued this week, Google’s delisting search results in France but not the rest of the world, in the age of a global internet, offers no right to be forgotten at all. They’re right.

It’s disappointing that our own Government argued this week to the lucrative benefit of the multinationals, and not its citizens whose data fuels their fat bottom line.