«

»

Free Speech hypocrisy is not helping us resolve the Right to be Forgotten

free-speech-1By Simon Davies

In his column this week for Britain’s Observer newspaper, the enormously entertaining David Mitchell reflected on a recent shock decision by Google to sever its search links to a blog post authored by the respected UK business journalist Robert Peston.

The decision stems – ostensibly – from a recent judgement by the European Court of Justice that defines the rights of citizens, in certain narrow circumstances, to limit access to online information that relates to them. Within that narrow spectrum citizens can request the removal of links to inaccurate, inadequate, excessive, irrelevant or outdated personal content, subject to a series of public interest tests.

The European Court of Justice: finding a balance of rights

The European Court of Justice: finding a balance of rights

The offending article had recounted the story of Stan O’Neal, former head of Merrill Lynch, who was sacked in 2007 over a litany of creatively destructive investment decisions.

O’Neal’s autocratic style almost destroyed the company and then left the ousted executive weeping in despair over a $161m severance package (all of which, as a side note, summarises the genesis of world recession).

At first sight the Google decision is odd, given that Peston’s article was evidence-based and entirely uncontroversial. Even more bizarrely, it wasn’t O’Neal who requested the shutting down of access to the article. It was, according to Google’s UK head of communications, Peter Barron, “an ordinary member of the public who left a comment on Robert’s blog.”

Nonetheless, most people on EU territory searching from now on around the O’Neal episode may experience some difficulty discovering the article – unless they use counter-intuitive search terms, route through an overseas proxy or simply use Google’s US-based .com domain (or indeed any country-specific domain outside the EU) all of which the company controversially claims is outside European jurisdiction. The article is still there, it’s just that Google obscured it by closing down some channels of mainstream access.

Risking a metaphor, the book wasn’t burned; it’s just that a couple of entrance doors to the library have been closed.

Risking a metaphor, the book wasn’t burned; it’s just that a couple of entrance doors to the library have been closed.

This judgement has become known – somewhat dramatically – as the “Right to be Forgotten”. French authorities that have spearheaded the development call it le Droit a l’Oubli (the right to oblivion).

Google’s action triggered a firestorm of protest in media circles. This extreme measure, according to some commentators, represents the slippery slope to systematic censorship – spoiling the collective dream of an era of free and open online media.

Both the Guardian and the Daily Mail – which each had a few articles similarly obscured by Google – called on publishers to fight back, arguing that critical material on serious political, moral or ethical questions should not be hindered.

In the Guardian’s words: “To do so is a huge, if indirect, challenge to press freedom”.

This reaction is completely understandable. Media organisations are already subject to an array of censorship mechanisms over which they have little control. Injunctions and suppression orders flood news outlets on a daily basis. If media can nip this latest incursion in the bud then a rare victory for free expression may – at least symbolically – have been won.

Media organisations – and advertising companies – that indulge in systemic self-censorship, that routinely deride privacy rights and that use free expression as a shield against accountability are in no position to take the lead on the challenge.

Having said that, media’s response to the Right to be Forgotten is often wrong-footed – and coming from some media outlets it is also hypocritical. The ECJ decision merely reinforced a long-held condition in European data protection law that provides similar rights. Google, however, has always believed that it is not subject to any such obligation.

Google has vehemently opposed the Right to be Forgotten, most vocally on grounds of both principle and practicality, but more subtly on grounds of cost to the company.

The “principle” championed by Google, however, is almost exclusively one of free publication, not the right to privacy. And yet the court talks in terms of a congruence of the two rights. The position taken by the company and many media organisations is thus too simplistic. This is a complex equation where the interplay of both rights needs to be protected.

It goes without saying that despite the widespread urban myth around the ECJ ruling (which has been fuelled in part, it must be said, by Google itself) that the advertising giant is publicly incandescent. Google is hell-bent on proving its argument that the decision is a backward-looking interference to rights and innovation.

In these circumstances the astute David Mitchell is right to reflect other voices that wonder whether Google is playing a dangerous game of perception management to prove its point:

Is Google deliberately using Peston’s blog to demonstrate how the European judges’ scheme, aimed at enabling us all to shake off the candid photography of stag dos past, might result in unadulterated censorship?

This “overload” strategy is ancient and effective. In its early days, infuriated by constant privacy scandals, Facebook dealt with the issue by providing so many complex privacy controls that few people could use them. Governments have been known to disruptively respond to Freedom of Information requests by burying sensitive data in a mountain of trivia. And if a company wants to show the stupidity of a court ruling, what better tactic than to adopt an extreme interpretation of it?

I don’t buy this puritanism over public interest from the likes of British media. Most major press outlets were perfectly happy aiding and abetting the disgraced Press Complaints Commission that brought discredit to the whole idea of press accountability. And I didn’t notice the Guardian Newspaper Group scrambling to account for its action of pulping the front page lead of an Observer article last year on new NSA revelations that fed from the Privacy Surgeon site. Indeed all the Guardian did was libel the source, Wayne Madsen, and then bury both the story and the truth behind its removal.

Yes, there are issues of practicality and principle that must be resolved in the Right to be Forgotten. I fully agree with that. But media organisations – and advertising companies – that indulge in systemic self-censorship, that routinely deride privacy rights and that use free expression as a shield against accountability are in no position to take the lead on that challenge.