The dangerous ‘right to be forgotten’

The European Court of Justice just made it legal to bury the past. Got an inconvenient disorderly conduct conviction? A history of domestic abuse? Politically inconvenient statements you made ten years ago about — pick one — women’s whining, African American athletic ability, gay marriage? Or maybe just photos of drunken spring break at Fort Lauderdale during your college years?

If you lived in the EU, you could now apply for a court order to erase all Google mention of your early indiscretions, bad behavior or even criminal convictions. The evidence would still exist somewhere, in physical court records or newspaper files, but no one would be able to find it via online search engines. That makes it more difficult, and much more expensive, to track down information.

The EU court decision applies to search engine links that are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

Mario Costeja González, a Spanish national, started the suppression process. He wanted to erase a Spanish newspaper’s 1998 stories about his debts and collection processes. The court said the newspaper could keep the articles, but that Google.es, the Spanish Google search engine, could not list the newspaper articles or any other reference to the case. In effect, that means the articles are hidden from public view.

What other records will be hidden under the new EU ruling? Hard to say, since records of applications to hide records are not public.

Poynter reported on one case: “Dougie McDonald, a referee who retired after a report said he lied about why he reversed a penalty” successfully applied to have articles about the event hidden. Six articles from the Guardian, published in 2010, disappeared from Google.uk.

Imagine what could happen with such a weapon on this side of the Atlantic. Perhaps Anthony Weiner could apply to block all search engine references to his 2011 wiener-waving. How old would racist or homophobic comments by political candidates have to be to be judged “no longer relevant .. in the light of the time that has elapsed?” How long would charges of fraud, or child abuse, or election tampering remain searchable? A 20-year-old drunk driving conviction would probably be too old — but what about five years or three years ago?

Luckily, the ruling applies only in the European Union. Even there, Google suggests that people could use a work-around (at least for now) by going to Google.com instead of Google.uk or Google.es or the other specifically European Google search engines. Which might work, at least for now, and at least for some information.

A recent Canadian court decision goes beyond the British ruling, ordering Google to remove all links to an allegedly fraudulent business in all Google search engines worldwide. In this case, the court wanted to make it harder for the business to defraud customers. But, as law professor Michael Geist writes:

“While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.”

Dan Gillmor argues that some things should be forgotten. That’s true. Not every youthful peccadillo deserves to be dragged up day after day and year after year. The problem comes in government mandates about hiding information. As Gillmor writes:

“The right to be forgotten has great allure – yet it isn’t as far removed from censorship as we might want to believe. This will be a true balancing test, of rights versus laws versus norms, and no matter how we resolve it some people will be harmed in some ways. I’m hoping we’ll establish new norms, where we are relentlessly skeptical of allegations, and where we cut each other considerable slack to be human.”

On July 4, Google restored some of the links to Guardian and BBC articles, but without any explanation. The New York Times noted that there have been 70,000 requests to hide information. Even more ominously, the European Community parliament is considering legislation that would impose even broader restrictions on searchable information.