right to be forgotten is wrong, unworkable, unreasonable (Wired UK)


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Europe’s right to be forgotten
ruling, which states that everyone has the right to wipe their
digital slate clean, is simply “wrong”, a House of  Lords report has concluded. As a result, it argues, Google
has been faced with an “unworkable and unreasonable situation”.

The Lords EU Sub-Committee — which deals with topics as
disparate as immigration, health, sport and education
— delivered this bold statement after consulting with the
Information Commissioner’s Office, Minister for Justice and Civil
Liberties Simon Hughes and Google, amongst others. In a lengthy
statement, Chairman of the Sub-Committee Baroness Prashar said the
reality was “crystal clear” —  “neither the 1995 Directive,
nor the Court of Justice of the European Unions’s (CJEU)
interpretation of it, reflects the incredible advancement in
technology that we see today, over 20 years since the Directive was
drafted”.

The report supports the UK government’s own stance that new
regulation needs to invalidate the CJEU ruling.

The right to be forgotten is an interpretation of Article 12 of
the Data Protection Directive, laid down by European Parliament in
1995 and relating to the protection and processing of personal
data. For close to two decades, the law was not interpreted as
having a “right to be forgotten” clause. But when one Mario Costeja
González found that the first Google search result of his name
related to a 1998 story about his property being repossessed, he
demanded Google remove the link. Since the report was no longer
representative of his financial situation, González declared it an
invasion of privacy — Google was highlighting a thing of the past,
not allowing him to live it down.

After years of legal battles, the CJEU agreed with González. And
since the ruling Google, much perturbed by the turn of affairs and
claiming to be totally unprepared to deal with it, said it has been
faced with more than 90,000 takedown requests and argues the law is
totally impractical and unjust.

The Lords’ committee appears to totally agree.

It believes that, at its very heart, the CJEU ruling is flawed.
It should not make search engines judge and jury of the web — it
is not their job, and is not stipulated in the law. On top of this,
people do not have an inherent right to have factual information
about them scrubbed from digital history. “We do not believe that
individuals should have a right to have links to accurate and
lawfully available information about them removed, simply because
they do not like what is said,” Baroness Prashar said.

This has been a major concern ever since the right to be
forgotten was first floated. In the days following the European
ruling, Google highlighted how these fears were coming to
fruition  when it told the FT 31 percent of takedown
requests from the UK and Ireland related to frauds or scams; 20
percent to arrests or convictions for violent or serious crimes and
12 percent to child pornography arrests. Others came from police
and government, or celebrities.

Further justifying these fears, when links began to be removed
and their publishers’ notified, it became clear anyone and everyone
would be taking a punt and asking for embarrassing or disparaging
information to be removed. BBC’s Robert Peston highlighted the
problem when he lambasted the takedown of a link to his 2007
blogpost on the career problems of a former Merrill Lynch boss
— the suggestion being someone in a position of power was
attempting to scrub their record clean. 

The Lords report concluded that the right to be forgotten is
unworkable for main two reasons.

First off, it totally ignores the fact that pretty much every
other search engine (bar Yahoo and of course Bing, which rather
embarrassingly had to volunteer to be included in the whole affair)
doesn’t have the spending power and infrastructure to implement the
ruling.

Since the ruling went into effect, Google says it has received
more than 90,000 removal requests. The search giant has repeatedly
emphasised that it is not equipped to deal with the response
itself, recently stating: “This is a new process for us. Each request
has to be assessed individually and we’re working as quickly as
possible to get through the queue.” In spite of this, European
regulators are apparently irked by Google’s ineptitude. Google appears to have been
painfully implementing the ruling down to the tee, which has meant
it okayed more than half the requests received (outrage ensued,
naturally, as many of those links removed went through to factual,
solid journalism relating to public figures). That diligence also
meant Google only removed the search results from its European
search engines, in line with the law, meaning anyone could switch
to .com or other portals to access them. Europe has apparently
taken issue with this, and the fact Google alerted websites to the
removals. It also complained Google was not passing on enough
information to national regulators, who are left to deal with all
the complaints Google rejects.

For all these reasons, it’s clear both Google and individual
countries are grappling with the enormous problem the new
application of the law has created.

The Committee’s second point, is a legal one — it says the
interpretation of the Directive was in itself, totally wrong. It
was “wrong in principle” to force search engines to be judge and
jury of the web. Particularly when “based on vague, ambiguous and
unhelpful criteria”. People should not have the right to pick and
choose what is recorded in history about them, said Baroness
Prashar, and search engines should not legally be considered
“data controllers” — an argument Google has used for
years. 

Rather damningly, Prashar concludes that yes, law should try and
keep up with technology. But when we do so it must be “sensible”
and should take into account the data logistics of what is
asking.

It should, she said, also “decide not to try and enforce the
impossible”.

The report somewhat echoes the many concerns Google has voiced
leading up to and following the CJEU ruling. And many members of
the public agree with those concerns. When Wired.co.uk published a blog suggesting Google, in its rather slow and
seemingly arbitrary implentation of the law, was attempting to
highlight its inadequacies in order to get it quashed, a number of
readers wrote in to say: good. Many see the impracticalities and
dangers of the law, and the Lords report validates those fears and
concerns.

There is an argument, however, that the report emphasises the
rights of businesses over the societal and legal issues that
brought it to the fore in the first place. Laurence Eastham,
editor of The Society for Computers and Law’s online publication,
comments
that it lays “too heavy an emphasis on the
inconvenience that arises for business — e.g. seeming to suggest
that start-ups cannot cope with ‘privacy by design’”. 

He continues: “It is worth emphasising that the Committee
publishing this report does not complain of a lack of balance in
the CJEU judgment — as so many of us have. It does not want any
such right to exist at all.”

Law researcher at the University of Cambridge, Julia
Powles
, is one such academic that has been pushing for a
careful, considered and balanced reaction to the law.

“The essence of my concern with the Lords is misdirected fire,”
she tells Wired.co.uk. “I agree that data protection as a system
has major flaws. Fixing perceived problems with the perceived right
to be forgotten is only a partial fix.” The Lords report, and
conclusions like it, could leave Google with an “escape route”, she
says, “and everyone else with onerous obligations, routinely
ignored”.

“We need to look at the whole edifice and debate why we have it
and how we can make it workable.”

Much as with DRIP, the surveillance law rushed through Parliament earlier
this month, the UK appears to be dealing with a Euoprean ruling it
does not like, by deciding to totally ignore and defy it.

Of this, Powles notes: “Politically, the UK is fast becoming
Europe’s pariah when it comes to digital rights. With this and with
DRIP, we see knee-jerk responses that go against the broader
sentiment of the continent and, importantly, go against individual
interests. It is really quite remarkable to have a public statement
on behalf of the UK so strongly decrying Europe’s superior
court.”

The debate, however, is far from over. Google’s own Advisory Council — launched to deal with the law’s fallout and
including human rights lawyers, editors and Wikipedia’s Jimmy Wales
— is seeking applications for public comment, and will hold meetings
where selected experts can testify across Europe. September dates
have already been set for public meetings in Madrid, Rome, Paris,
Warsaw, Berlin and London.  

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30 July 2014 | 1:05 pm – Source: wired.co.uk

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