The right to be slightly less remembered?

The so-called right to be forgotten saga on search engine results won’t go away. Ironically, this is one legal development that nobody will allow you to forget.

Every day about a thousand requests are made to Google from people all across Europe for information about them to be removed from its massive search engines.

In fact, the right is nothing more than a 'right to be slightly less remembered'.

Yes, Google is the largest search engine; yes, deleting personal information from Google means that it is trickier to find; and yes, this would please many people who want to try to hide any offending information that is held on them. However, the elephant in the room, the existence of which everyone seems desperate to forget, is that the information may still be on other search engines—yes, others do exist—or it may be held in non-digital form somewhere.

Deletion from Google does not mean the right to be 100% forgotten. According to recent market share statistics, it is more a right to be forgotten 89% of the time.

Not quite the same.

What’s more, the information will still exist on the Internet for anybody who has the site address, or URL, to find it. It is only the link, and not the information, that is deleted.

In contrast, the amount of requests that Bing received has been negligible (eg 12 in the first few days after the Google judgment). Individuals may well get wind of this fact and start to migrate to Bing, Yahoo or less well known search engines, at least in the short term, in order to get non-filtered and thus truer search results. Alternatively, they may simply choose to favour a Google search engine which is based outside of the EU.

It is any wonder that the House of Lords European Union Committee scorned the European legal ruling on which all of this is based yesterday stating that the new regime is ‘misguided in principle and unworkable in practice’.

To be fair, they have a point. The Data Protection Directive 1995, which the UK’s Data Protection Act 1998 implements, came into force three years before Google came onto the scene. It was only a year before the Directive that the first full text search engine, WebCrawler, came into being.

The Directive is akin to a law on horse-drawn carriages being used to regulate traffic on the M25.

This is where the new EU Data Protection Regulation should come in—if it would hurry up.

Lawyers and businesses have been waiting for years for this package of reform to be enacted. The Regulation is designed to modernise the law on data protection (and contains a proposed right of erasure similar to the right to be forgotten) but its progress through the EU’s institutions has been glacial at best. The ICO’s best guess is that it won’t be until 2017 when it comes into effect.

Eventually the debate will therefore move away from the Google case and onto the more far-reaching right of erasure which is set out in articles 17 and 19 of the draft Regulation. The Lords have rebuffed this proposed new right of erasure in their report and have called upon the government to resist it. Many others are not happy with this new right, suggesting that it may pose a threat to freedom of expression throughout the EU.

That the imposition of this new (temporary?) regime has caused massive challenges to search engines and that the deletion of offending material has inevitably been piecemeal (to date) is abundantly clear. Stakeholders will continue to grapple with the fall-out from the Google case whilst keeping an worried eye on future legal developments. It is a conceptual mess that nobody quite knows how to clean up.

In practice, this means that individuals will need take their online profiles much more seriously. Increasingly we may start to develop have two quite distinct personas—many do already—a real one and a more sanitised virtual one. The data retention laws that were rushed through Parliament earlier this month (see our recent blog post here) could also have a major impact. There may well be a right to be forgotten by the public in general but it is clear that state authorities may not forget quite so easily.

So far, much of the debate has concentrated on legal issues but increasingly we will also need to understand what the psychological consequences are of youthful indiscretions never being consigned to oblivion or whether constant self-censorship is damaging to freedom of speech and our state of well-being.

The debate will rumble on...

Where do you think the balance should be struck between the right to privacy and the right to free speech? Has the Court of Justice of the European Union gone too far or not far enough?  Let us have your thoughts below!

Area of Interest