Right to be forgotten, the Photoshop for Data?


Por Laura Vivet Tañà

Recently the media have been echoing the landmark judgement of the European Union Court of Justice (ECJ) about the famous “right to be forgotten” starring Mario Costeja González, a Spanish forensic expert who decided to defy the laws of internet and challenge the giant Google, and defend his right to privacy.

It reminds us of the Ministry of Truth of the classic 1984 by George Orwell, whose function was to re-write history and falsify it.

The origin of this case started in 1998, before the approval of the current LOPD ( in Spanish acronym) – the Organic Law 15/1999 on personal data protection. Back then, the newspaper La Vanguardia ( newspaper of wide circulation in Catalonia ) published in its printed version an announcement of an auction of a property belonging to Costeja and his wife. An auction which was taking place as a direct result of social security attachment. Strangely enough this was also the year in which the company Google, our second principal star, was founded. 10 years later La Vanguardia digitized all its hermeroteca from 1881 to present day, facilitating free consultation by date or key words. 

At this time Google Search was one of the most popular search engines –for want of saying the most popular– and Costeja had already met all of his debts and was divorced. One day it occurred to him to carry out an “ego search” and to his surprise he saw that when he typed his name in the search engine, the auction in 1998 appeared in the search results.

But Mario was not the only one affected by the internet boom. Many other conflicts rose over the years; for example, with the digitalization of Official Bulletin came the indexing of such contents by the search engines, and thus the same consequences. There have been multiple claims by people who have requested that search engine results which are displayed upon typing their names, be excluded from the search engine.

Specifically, there was the case of a lawyer who claimed that, in typing in his name in the search engine a publication appeared which was related to a pardon for a person who had the same name and thus led to confusion. There was also the case of the sub director of a college who in his case, appeared in an Official Bulletin re the commission of a violation of civil order/coexistence, for relieving himself in public.

In these cases, as they were legal publications it was not possible to delete or suppress such information but in any event the fact that such content was indexed indefinitely in the search engine, by simply typing in the name of a person, appeared to be overreaching. For this reason the AEPD ( in Spanish acronym ) recommended that some Bulletins use exclusion tools(“robot.txt” or codes like noindex” or “noarchive)and as such avoid indexing content in search engines, especially when referring to really old information.

It was the view of the AEPD that, a person who does not have a public profile nor data which is of public interest should not be condemned to bear indefinitely and against his will, prejudicial data about him circulating in the internet about his person without the possibility to react to such data or correct such data.

In any event, the case of Mario was not simply limited to a legal publication, it involved a paper which was in circulation over a long period of time, protected by the right to freedom of expression and information and as such, the application of technical methods of exclusion may be conflicting. As a result, in 2010, the AEPD dismissed the claim against Google Spain y Google Inc.

Google Spain y Google Inc. were dissatisfied with the finding and appealed and in proceedings before the Audiencia Nacional ( Spanish High Court ) the court sought a preliminary ruling from the ECJ, which in its landmark judgment ruled that Google Search activities in Europe are subject to European data protection legislation, and considered that Costeja had the right to oppose to the search engine’s processing of his data, as it was sensitive and outdated information which lacked interest as it related to a person who did not have a public profile (well, at least, not until the publication of the court ruling ^_^ The Court observed that the data subject’s rights also override, as a general rule, the legitimate interest of internet users to access information.

Costeja in the meantime stated to the media that he was not worried about his image online but the impact it could have on his profession.

We must bear in mind that this information has not disappeared from internet; it has only been eliminated from the Google results when Costeja’s name is typed in. The information continues to be published in the digital hemeroteca of La Vanguardia. In fact, when typing his name in hemeroteca the infamous publication is newly displayed. This is so because an absolute right or full right to be forgotten does not exist. The original publication and the search engines’ results are considered separately.

As a result of the ruling, Google has made an online form available to enable users to request the deletion from search results linked to their name if they consider these results to be prejudicial. It has also launched a page dedicated to the right to be forgotten where it invites any user to publish his/her opinions and comments about the court ruling and how it should be applied.

The judgement does not determine whether the elimination of the results solely affects the search page in European territory ( for example, Google.es ) and thus not affecting the general search Google.com although it appears that it this is the direction which is being taken. Other search engines like Microsoft’s Bing have announced that they will offer the right to be forgotten to their users.

To date, Google have received more than 70,000 rights to be forgotten requests from European users. Some of these requests have affected well known newspapers such as The Guardian and the broadcasting corporation, the BBC who have already let it be known their displeasure announcing that this ruling has the characteristics of censorship and undermines freedom of information. This reaction seems to have been even stronger in the light of the fact that although it was not a requirement of the judgement, Google sent a notice to the relevant media warning of the removal of its pages from search results. One of the most commented was a publication by the well known BBC British journalist, Robert Peston, as a result of a request by a person mentioned in his article published by him.

The Director of the AEPD, José Luís Rodriguez, has stated to EFE (Spanish international news agency ) that the ruling is in “its initial stage” and that European data protection organizations are evaluating what actions to put it into practice, adding “we will say which activities we consider to be incompatible with the data protection law and which are not necessary to comply with the judgement because it would appear that in this initial phase Google is putting in place more measures than needs”. He also added that if anyone felt “damaged or distressed” they have “all legal channels open” to defend themselves.

Some experts have already indicated that Google’s reaction is a strategy to highlight the infeasibility of the right to be forgotten is before it is included in the new European Data Protection Regulation and at the same time, gain media and public opinion support.

It has to be said that Google has shown its willingness to comply with the ruling by designating a committee of 10 experts, amongst which we will find José Luis Piña ex-director of the Spanish Data Protection Agency (AEPD), Sylvie Kauffmann, Editor in Chief of the French newspaper Le Monde” and Jimmy Wales, founder of Wikipedia. In fact Wales has already in previous occasions expressed that he was not in favour of the right to be forgotten as Wikipedia has been busy with different requests for elimination of Wiki contents. One of the most well known took place in Germany when the ex-convict Wolfgang Werlé requested the removal of his name and that of his brother from wiki for the brutal killing of the actor Walter Sedlmayr, once they were released from prison for committing the crime.

The positions before the this leading judgement are absolutely contradictory. It reminds us of the Ministry of Truth of the classic 1984 by George Orwell, whose function was to re-write history and falsify it.

Others fear that, Google will be converted into a type of profile like Linkedin, Facebook or About.me and others such as Michael Fertik, founder of Reputation.com which helps people to improve their on-line reputation, celebrate the judgement highlighting that “for the first time human dignity will receive the same treatment online as copyright rights”.

On the other side of the Atlantic, the judgement is viewed skeptically, especially because it could be considered contrary to the First Amendment of the United States Constitution which, amongst others, protects the right to freedom of expression and prevents Congress from creating laws which restrict freedom of the press or rights of individuals to freely express themselves.

This event reminds us once again of the importance of valuing what we publish in the internet

We must not forget that the judgement only applies a European level and therefore, a request for rights to be forgotten only covers European citizen. The remaining users must follow the procedures in place to date, in other words, approach the Webmaster where the information which they do not agree with, is published, and if said webmaster does not give its authorization, they will have to contract an SEO to improve their online reputation or bring court proceedings.

It would seem legitimate that the European data protection law applies to search engines such as Google, who have offices in Europe and sell its products to European citizens. Nevertheless, bearing in mind the intermediate role they play in information society, it does not seem logical to omit the principal role of Webmaster in the solution to the problem.

In addition, bearing in mind the main problems and conflicts in media communications, perhaps the focus of reflections should start there, and even more so as they are the ones who are in the best position to evaluate whether an item news or a publication, fall within public interest, or not.

This event reminds us once again of the importance of valuing what we publish in the internet as the rules in this sector fluctuate and change. As of today’s date, it is possible to request search engines such as Google, the removal from their search engines links to specific search results, if in our particular case a number of requisites are met, but tomorrow this may not be so simple.