Censorship, Euro-Scepticism, European Law, European Union, Freedom of Speech, Google, Mario Costeja González, Morality, Opinion, Politics, Right to be Forgotten, Technological Determinism, Technology, Viviane Reding
Imagine that you are the director of executive responsibility at a prominent city bank. I’ll give you a moment. Right, are you with me? So, your bank has its own amateur dramatics society and it occasionally puts on shows for charity. This year’s Christmas gala performance is The Wind in the Willows and you are playing Mr. Toad of Toad Hall. The production garners so many compliments that in August the bank decides to take it to the Edinburgh Fringe for a weekend. All profits will go to some charity which provides clarinet lessons for children with skin disorders.
At the Assembly Hall, you spend two hours being laboriously encased within the huge papier-mâché costume, with its grinning mouth and popping eyes. On hearing the warning cue, you are helped to your feet. Alas, you take a wrong turn in the corridors and, blundering through the wrong door, you bound straight into the final act of Othello.
Othello and Desdemona are absolutely incandescent and, between them, they pull off your jolly green head and pummel your face with their fists. The audience boos and jeers. This is a student production from Cambridge University and you have completely ruined it. What a fiasco!
It seems that you will never be allowed to forget about this disaster. Back in the bank’s mega-complex, your interns no longer quiver at your approaching footsteps and they regard you with amused condescension. The reason for this is possibly an Edinburgh blog called Tychy and its summer feature Tychy@ the Fringe. The reviewer was sitting glowering in the front row during your Othello debacle and he later padded out to fish for your name in the foyer. The result was an article which luridly described your on-stage invasion and put it forward as a complicated, rather pretentious metaphor for the depredations of bankers upon the future of our students.
Luckily, the European Court Of Justice has just ruled that you, and every other EU citizen who is not a public figure, has a “right to be forgotten.” In response, Google has introduced a webform for those who want “inadequate, irrelevant or no longer relevant” results to be removed from their search engines. You submit your complaint and within a few weeks the Tychy review is gone. It is technically still there, but nobody can access it using Google. The review is rather like a book in a library which has had its doorway blocked up with cement. Your colleagues can still gloat over the review when they are passing through Japan, but few of them are inclined to travel all the way to Japan to read Tychy.
What is good for the goose is not always good for the gander. The 20-year-old student who played Desdemona had, at least before you pranced on to the stage, delivered a stunning interpretation of this character. In fact, the Tychy reviewer reckoned that nobody had ever really got to the bottom of the play until this production. The Cambridge University team had a great deal to teach English Literature about feminism and Shakespeare. It was altogether a shame that these students had no “right to be remembered.”
The above scenario might be unrealistic. Google’s committee might come to the decision that my review is culturally “relevant,” or that the public has a right to know about disastrous, inappropriate contributions to the Edinburgh Fringe. Several commentators have gloried in the irony that Mario Costeja Gonzalez, the Spanish man whose legal challenge had led to the contentious ruling, is now potentially exempted from using it. That newspaper article about his debts is no longer “irrelevant” but an important historical document; and Senor Costeja is now a “public” figure of whose doings we have a right to know about.
There are two issues here. Firstly, there is the broad objection about conflicting rights. Supposing that Senor Costeja could still successfully exercise the right to have his public misdeeds forgotten, on “privacy” grounds, so that the newspaper page about his bankruptcy was expunged from search engine results. The same page might contain news about a lady who had raised enormous amounts of money for charity. She, of course, has no right to publicity and the newspaper’s right to publicise her charity work is still technically in operation (people can still, presumably, set up websites which link to the page). But one person’s “right to be forgotten” has nonetheless involved forcibly suppressing somebody else’s history without their consent.
This is, incidentally, assuming that only one page of the newspaper will be suppressed, which might not be the case. If Google received complaints about three different Tychy @ the Fringe reviews from indignant thespians, they might conclude that it was easier to chop off the entire website from the internet. It is mind-boggling because there has to be some measure of discrimination. Google cannot simply rule that typing your name into their search engine will produce no results. Mario Costeja Gonzalez does not own the words “Mario Costeja Gonzalez.” He might share this name with fifty other people. Some of those people might have gone bankrupt as well, and there might be an indisputable public right to know about those Mario Costeja Gonzalezs because they are in charge of international aid budgets or massive public works schemes. Google are more likely to come down hard on articles about those with unusual names and go easy on the commonplace. Good news for Helmut Crackpot-Frumpington; bad news for poor, traduced John Smith.
The second, far more important objection is that we are forced to rely upon Google’s censors to make the right decision, rather than on our own initiative. Commentary about the right to be forgotten often does not add up to anything because there is no recognisable understanding of human beings added to the formula. An employer might Google a job applicant and find photographs of them as an ingloriously drunken teenager. He might decide that this was a point in their favour, an indication of normality; or he might discount the photographs as being unrelated to a job application. An interviewer who demands an explanation of his applicants’ drunken antics only advertises how terrible an employer he will be. In this scenario, we see people interacting in an ordinary way and using their own common sense. There is really no need for state intervention.
No judge is perfect and certainly not a Google committee making quasi-judicial decisions. If the proposed webform system is adopted, there will be mistakes and conflicts of interest. Of course, we rely upon newspaper editors to make decisions about what news to publish and what to suppress, but whenever such figures err, there is usually a rich online scrutiny of their judgement. There is currently no light at all upon Google’s committee and it is unnerving how much trust is being placed in such a potentially important link in the media chain.
The “rights” described in this case are, in fact, spurious, deriving as they do from no original or authentic popular demand. The “right to be forgotten” is a right dreamt up by closeted, unelected European politicians rather than one fought for in the streets against tanks. As the Mason Hayes & Curran Technology Law Blog observes:
the “right to data protection” (as distinct from a right to privacy protecting the personal sphere) is a relatively new fundamental right… In contrast, free speech and the right to freely receive and impart information are core and well established human rights, well recognised in the legal orders of most EU states. Notwithstanding this, the Court appears to have found that the new right to data protection takes precedence over, and as a result erodes, the traditional protection of free expression.
This political incompetence, the random juggling of contradictory rights, means that Europe can only wait for the next legal ruling to see where it is at next. The right to be forgotten does not possess any moral substance, and none of those who idealise such a right can be heard arguing for the end of the Sex Offenders Register. This is probably because they are ultimately attacking freedom of speech rather than defending any genuine right. We thereby achieve a schizophrenia in which a local newspaper can be censored for publishing a story about a sexual exhibitionist, whilst the authorities force the same offender to constantly remind the community about his past.
Yet the right to free expression is just as shaky as the Johnny-come-lately right to data protection. When I was eighteen I was not campaigning for the right for an almost worldwide freedom of expression. The fact that I currently enjoy such a thing is purely down to historical accident or technological determinism. Millions of people may have eagerly embraced online freedoms, dressing them in a sort of justice, but the chief reason why politicians do not tamper with these freedoms is that they have not yet found any ready means of doing so. They might do in the future and then we will rue our political passivity.
The right for anybody to publish whatever they want has been nibbled at in the UK, with piecemeal prosecutions, but the relative popularity of online freedom and regulation has never been directly tested within democratic politics. Until then, the right to online expression remains vulnerable to being reduced, altered, or taken away as unexpectedly as it was given.