EU Court Of Justice Advocate General: No Right To Be Forgotten; Google Not Responsible For What It Finds

from the getting-it-right dept

For years, we've discussed the very troubling concept, supported by many in Europe, of a right to be forgotten, which would allow someone to require that internet sites scrub any evidence of truthful historical events -- such as a criminal conviction -- if those events are embarrassing. If you believe in basic free speech rights, such a concept should be horrifying to you. Last year, we noted that a report put out by a European committee noted that it was basically technically impossible to really enforce a right to be forgotten, but the concept is still being widely pushed.

In a key lawsuit in Europe that alleges there already is such a right, and that Google needs to somehow scrub links to information that someone finds embarrassing, the advocate-general of the European Court of Justice, Niilo Jaaskinen, has stated clearly that there is no such right under European data and privacy laws and that the courts cannot require Google to remove links under such a claim. Specifically, Jaaskinen looked at the data protection directive in the EU and found:

...the Directive does not establish a general ‘right to be forgotten’. Such a right cannot therefore be invoked against search engine service providers on the basis of the Directive, even when it is interpreted in accordance with the Charter of Fundamental Rights of the European Union.

The rights to rectification, erasure and blocking of data provided in the Directive concern data whose processing does not comply with the provisions of the Directive, in particular because of the incomplete or inaccurate nature of the data. This does not seem to be the case in the current proceedings

Basically, there's a right to fix misleading or incorrect data, not data that is accurate that you just don't like.

Perhaps more importantly, the filing notes that it's also ridiculous to blame a search engine for finding content that others posted, since the search engine is not responsible for that content. In other words, basic concepts of protection from secondary liability should apply:

In effect, provision of an information location tool does not imply any control over the content included on third party web pages. It does not even enable the internet search engine provider to distinguish between personal data in the sense of the Directive, which relates to an identifiable living natural person, and other data. In his opinion, the internet search engine provider cannot in law or in fact fulfil the obligations of the controller provided in the Directive in relation to personal data on source web pages hosted on third party servers.

Therefore, a national data protection authority cannot require an internet search engine service provider to withdraw information from its index except in cases where this service provider has not complied with the exclusion codes4 or where a request emanating from a website regarding an update of cache memory has not been complied with.

Of course, this is just the advocate-general's position, and the ECJ could decide to rule otherwise, but it appears to often pay close attention to what the advocate-general submits to the court. Hopefully the court's eventual ruling agrees with this common sense approach, and doesn't create a bogus right to be forgotten and then, even worse, puts the liability on third parties for enforcing it.

Filed Under: advocate general, eu, european court of justice, niilo jaaskinen, right to be forgotten, secondary liability
Companies: google

EU Report: The 'Right To Be Forgotten' Is Technically Impossible... So Let's Do It Anyway

from the just-forget-it dept

Every few months, it seems, we hear about yet another attempt in Europe to implement the absolutely ridiculous idea of the "right to be forgotten." We wrote about it in 2010, 2011 and again earlier this year. It's a silly idea for a variety of reasons. The general idea is that someone, say, who has committed a crime, but is then rehabilitated / served his time / whatever, deserves a "fresh start" and the stories of the crime and punishment should be erased from publications. Europeans who support this wacky idea argue that it's a form of a privacy right. But that's ridiculous. It has nothing to do with "privacy" at all, as the fact that someone committed and convicted of a crime is a public fact, not private info. Telling people (and publishers) that they can't talk about factual information, or even leave available factual stories written at the time just seems completely offensive to anyone who believes in the basic idea of free speech.

And, of course, there's an even bigger problem. The whole idea isn't just silly and complex, but it's totally impossible. And it's not just me saying that. As Stewart Baker points out, the European Network and Information Security Agency (ENISA) has put out a report making the basic impossibility of a "right to be forgotten" quite clear:

Consider Alice viewing Bob’s personal information on a computer screen, while she is allowed to do so (i.e., before Bob has invoked his right to be forgotten). Alice can take a picture of the screen using a camera, take notes or memorize the information. It is technically impossible to prevent Alice from doing so, or even to recognize that she has obtained a copy of Bob’s personal data.

They seem to make that clear just by the image they chose to put on the cover of the report: That said... given the very admission that this is impossible, you'd think the recommendation would be (perhaps) to find something a little more productive to work on. But, no, that would be wishful thinking. Instead, despite the admission that the whole endeavor is doomed to be a failure for the simple fact that it's impossible, they still discuss ways that it might be implemented. And their ideas? Well, to double down on the impossible with crazy regulations. Take for example, the following two "recommendations" in the final section, one right after the other:

• For any reasonable interpretation of the right to be forgotten, a purely technical and comprehensive solution to enforce the right in the open Internet is generally impossible.
• A possible pragmatic approach to assist with the enforcement of the right to be forgotten is to require search engine operators and sharing services within the EU to filter references to forgotten information stored inside and outside the EU region.

Got that? So it's impossible, but let's regulate the hell out of search engines and tell them what they can't link to. Perhaps if they'd stopped after the point at which they determined it was "impossible" we'd all have been better off.

Filed Under: enisa, europe, free speech, impossible, privacy, public information, reporting, right to be forgotten

Why Can't Europe Just Forget The Ridiculous Idea Of A 'Right To Be Forgotten'

from the we-can't-forget dept

We've talked about what a dumb idea a "right to be forgotten" is in the past, and yet, Europe keeps looking into just such a law. A leaked copy of the EU's new Data Protect Directive includes a clear "right to be forgotten" initiative:

To strengthen the 'right to be forgotten' in the online environment, the right to erasure should also be extended in such a way that any publicly available copies or replications in websites and search engines should also be deleted by the controller who has made the information public.

Basically, if there's any information about you online -- even information you created yourself and posted online directly -- that you suddenly decide shouldn't be online any more, you can demand its removal. This is pretty ridiculous for a variety of reasons. While it's positioned as a form of "privacy," that's insane. There's no "privacy" in information you've already released publicly. Pretending that the information can just "disappear" is fantasy-land thinking by EU politicans.

Failing to delete the info in question can lead to rather large fines, up to 1% of a company's revenue. As someone who runs an American company, this bill is particularly worrisome to me. Because of an agreement between the US and the EU, if we allow anyone from Europe to use Techdirt, we have to promise to follow standard privacy practices that meet EU standards and pay some company a yearly fee to make sure we're in compliance. We've done this (even though I'm sure that many, if not most, American websites ignore this rule). But now I need to go explore if this means we would have to delete any old comments from Europeans. As a rule and policy, we do not delete old comments from Techdirt. We get requests from time to time (and every so often a legal threat), but we stand by our policy. If suddenly we have to worry about massive fines from Europe just because someone regrets what they said in a comment years ago, I'm not sure what we'll do. At the very least, we'd have to explore banning comments from Europeans on the site.

What really gets me about this is that the entire "right to be forgotten" doesn't seem to serve any legitimate purpose, other than to pretend that you can somehow delete public information that you later regret. I can't see how that solves any public policy issue, other than that people sometimes regret what they say or do. But out here, in the real world, people learn to get over such things, not to pretend the world is some magical fantasy land where they can delete history.

Filed Under: europe, privacy, right to be forgotten

'Privacy' The Latest Tool Being Used For Censorship

from the right-to-be-forgotten dept

In the last few months, we've written a few times about the EU's bizzare fascination with a "right to be forgotten," which is a bizarre attempt to create laws that would let individuals demand that anything they don't like about themselves be deleted from the internet. The argument supporting this is always that it's a form of a "privacy" right, but that's not true. A right to privacy is about keeping your private info private. This "right to be forgotten" is usually about trying to block public info. However, the EU is still pushing forward with this idea, apparently not realizing how disastrous it would actually be in practice. Supporters have mocked concerns about free speech, claiming that we Americans "fetishize" free speech.

But this goes beyond just a basic free speech claim or a privacy claim. This is really about censorship. Berin Szoka points us to a great analysis by Peter Fleischer about how a "right to be forgotten" is really about censorship. Fleischer is Chief Privacy Counsel for Google, but wrote this on his personal blog, rather than as an official Google position.

More and more, privacy is being used to justify censorship. In a sense, privacy depends on keeping some things private, in other words, hidden, restricted, or deleted. And in a world where ever more content is coming online, and where ever more content is find-able and share-able, it's also natural that the privacy counter-movement is gathering strength. Privacy is the new black in censorship fashions. It used to be that people would invoke libel or defamation to justify censorship about things that hurt their reputations. But invoking libel or defamation requires that the speech not be true. Privacy is far more elastic, because privacy claims can be made on speech that is true.

Privacy as a justification for censorship now crops up in several different, but related, debates: le droit a l'oubli, the idea that content (especially user-generated content on social networking services) should auto-expire, the idea that data collection by companies should not be retained for longer than necessary, the idea that computers should be programmed to "forget" just like the human brain. All these are movements to censor content in the name of privacy. If there weren't serious issues on both sides of the debate, we wouldn't even be talking about this.

The whole thing is a good read. He breaks down the component issues, to get around the attempts by some to conflate very different issues to support a right to be forgotten.

Filed Under: censorship, europe, privacy, right to be forgotten

Europeans Continue To Push For 'Right To Be Forgotten'; Claim Americans 'Fetishize' Free Speech

from the let's-try-this-again... dept

Back in November, we wrote about a proposal making the rounds in the EU for an official "right to be forgotten" law, which would allow people to demand that any website delete all info about a person at their request. As we've noted, some European countries already have something like this, such as in Germany, where a convicted murderer tried to force Wikipedia to remove his name in a discussion about the murder. France has been arguing for such a law for a while as well.

Over at The Atlantic, there's a story with the expected storyline about how Europe loves privacy, while the US loves free speech, and this whole "right to be forgotten" issue is where those two cultures clash. While there is some truth to the stereotypical claims about the US believing free speech trumps all and Europe valuing privacy much more, I still think this story line is not accurate for two important reasons.

First, I still don't believe the "right to be forgotten" is truly a privacy issue at all. A privacy issue is about protecting private information. The right to be forgotten is the opposite of that. It's asking websites to delete public information, including factual news information about a person. That's not about privacy. That's about pretending public information is really private.

And that brings up the second point, which is that the concept of a "right to be forgotten" isn't just silly because of the free speech restriction, but because it's impossible. You might be able to force some information off of some websites, but it will simply be impossible to erase that information completely -- especially on a global internet, where large segments of that internet will not exist in countries that abide by any "right to be forgotten." But even beyond that, once information is public and in people's brains, it's impossible to force them to forget it and equally impossible to realistically tell them they cannot ever speak about it again. From a sheer logistical angle, the whole idea of a "right to be forgotten" is so laughable that it's a waste to even seriously consider implementing such a thing.

Of course, that's probably why some politicians will still try to do exactly that.

Filed Under: europe, free speech, privacy, right to be forgotten, us