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There Are Many Arguments For Erasing An Argument

The titans of digital technology believed, a generation ago, that their inventions would power great good and such progress would be universally approved. They talked about creating unlimited access to knowledge and unfettered social interaction. The world beat a path to their door, to paraphrase the old parable about the power of innovation. Algorithms led to new fortunes as well as bots, trolls and other evils. Knowledge unbound beget battles over copyright, privacy and, ultimately, order versus disorder.

erase and rewindLast week Google general counsel Kent Walker rather bluntly outlined the company’s position, legal and otherwise, in cases before the European Court of Justice (ECJ), formal arguments due to begin this week. The two causes before the ECJ ask for relief under “the right to be forgotten” and Google, as the primary global search engine provider, is the defendant. Both have been referred by the French Conseil d’Etat. In one, unnamed applicants are asking the ECJ to vacate a ruling by the French data privacy regulator National Commission on Informatics and Liberty (Commission nationale de l'informatique et des libertés - CNIL) that Google is not required to remove links to third-party sources found by name searches of public figures. “If the Court accepted this argument,” wrote Mr. Walker, “it would give carte blanche to people who might wish to use privacy laws to hide information of public interest.”

The second case seeks to force Google, and likely other search engine providers, to de-list from all its domains (google.com and all the rest) any challenged search result, not simply territorially-specific search sites. The CNIL ruled in 2016 that questioned name search results must be delisted everywhere and fined Google €100,000 for its disobedience. News organizations and advocates for protections against censorship were revolted by what they deemed as judicial over-reach, even as legacy newspaper publishers were pushing for controls over search engines and anything else using the internet. “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,” wrote Mr. Walker.

Conceptually, the ”right to be forgotten” has certain depth in Europe. The ease at which individuals can be “tracked down” through a web search wells up the horrors of lists made and people disappearing. In 2011 European Commissioner for Justice Viviane Reding introduced the “right to be forgotten” as a “people’s right” to be addressed in revisions of data protection rules. The ECJ codified the “right to be forgotten” with the 2014 decision in Google v. Costeja, in which the appellant sought de-indexing of an unflattering newspaper article.

The Canadian Supreme Court in June ruled that Google must de-index worldwide certain content involved in an intellectual property dispute between two Canadian companies. A US district court granted Google an injunction (November 3), citing US law that protects online operators from liability involving content created by third-parties. We all know where this goes: back to court.

Next May the General Data Protection Regulation (GDPR) will come into full force in the European Union. It replaces the 1995 Data Protection Directive. The GDPR “extends the scope of the EU data protection law to all foreign companies processing data of EU residents.” The “right to be forgotten” will become the “right to erasure.” It is not expected that the ECJ will issue a final decision in the current cases involving Google and the CNIL until after the GDPR come into effect.

“Privacy is the natural corollary of freedom of expression,” remarked Index on Censorship chief executive Jody Ginsberg to a Banned Book Week event in Ireland (October 10). “It allows reporters to protect their sources in pursuit of truth and advocacy organisations like ours to protect those whom governments seek to silence. But privacy rights should not trump freedom of expression in such a way that they prevent us coming closer to the truth.

“It is for this reason that Index on Censorship opposed the so-called ‘Right to be Forgotten’ ruling that allows ‘private’ individuals the ability to remove links to information they considered irrelevant or outmoded. In theory, this sounds appealing. Which one of us would not want to massage the way in which we are represented to the outside world? Certainly, anyone who has had malicious smears spread about them in false articles, or embarrassing pictures posted of their teenage exploits, or even criminals whose convictions are spent and have the legal right to rehabilitation. In practice, though, the ruling is far too blunt, far too broad brush, and gives far too much power to the search engines.”


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