Righting the Right to Be Forgotten

By Jonathan Zittrain

Posted on July 16, 2014


The F-T just published a piece I wrote about the implementation of the right to be forgotten in Europe. Here is a draft from which the op-ed was drawn:

Last week Google formally launched a blue-ribbon committee of advisors to help it implement the European Court of Justice’s new “right to be forgotten.” Its work is cut out for it, as the search giant processes more than 70,000 requests since May to decouple a claimant’s name from possibly true but still “irrelevant” (and presumably reputation-damaging) search results. Turning theory into practice has revealed unanswered questions – and some outright flaws – in the Court’s decision, regardless of where you might stand on the right’s philosophical merits.

The first puzzle is transparency. Other types of compelled redactions, such as for alleged copyright infringement, occasion a notification to searchers that results have been altered. But a specific notice that a search on someone’s name is missing something could lead to a negative inference about the person even worse than the substance of whatever has been removed. So how to report on compelled takedowns in a way that is neither Orwellian nor self-defeating?

One idea is for Google and other affected search engines to contribute to a database of takedowns that independent academics can analyze in order to produce credible insights about how the new right is working in practice. Are public figures looking to scrub their records to avoid scrutiny, or are the requestors more often private citizens? Are the takedowns focusing on content within obscure Web-originating message boards, or on archives of government records or newspaper articles? Without a record of takedowns, there will be no way to understand how the use and impact of the right are unfolding.

The second puzzle is accountability. With Google’s European market share around 90%, name-specific content that’s delisted might as well be gone entirely – indeed, it’s Google’s power that makes the assertion of the right meaningful. But here state power is being exercised without the involvement of the state: a request is made of Google for a redaction, and Google decides how to handle it. If the request is denied, the claimant might escalate the issue to his or her local data protection authority. But if the request is agreed to, there’s no means for review. Under the Court’s decision, the public’s right to know is to be balanced against a claimant’s right to privacy – but there’s no easy way for the public to remonstrate against poor balancing.

That should change, and there is an admirable start: Google has begun alerting affected sites when content has been taken down. Thus, BBC and Guardian reporters could disclose last week, disapprovingly, that some of their articles had been eliminated from some Google searches. The ensuing controversy resulted in Google restoring some of the links. The sites can thus stand in for the public, objecting to overly broad takedowns so long as they know that they’re taking place. That’s why Google’s decision to notify creators of content that’s at issue is vital to achieving the Court’s stated purpose, rather than a subversion of it, as some have alleged. But not every affected site enjoys the platform of a major newspaper or state-funded broadcaster. A more comprehensive solution would be for sites to be able to answer the original takedown request before Google even makes a decision, and to have standing to appeal an adverse determination the way that original claimants can – something that the Court itself would have to bless.

But once we’ve gone so far as to allow a properly adversarial process in deciding upon takedowns, we highlight the incongruity of having Google – or any private party, for that matter – as a decision maker about rights. To place Google in that role is to diminish Europe’s sovereign power, not enhance it, even if the role is compelled by European authorities. It turns a rights problem into a customer service issue, and one that Google and others in its position no doubt rightly disdain. If Google can process 70,000 requests, so can and should the data protection authorities. And not every public decision needs the full, lawyer-heavy trial format to be sufficient to the cause – any more than Google is using it now.

This would place decisions about rights in the public sphere where they belong, and limit the scope to the sovereign’s jurisdiction, so a European decision would still not affect use beyond the relevant country-specific Google portals.

Finally, the Court needs to recognize that the Web is protean. Sites and content change, including such ever-evolving pages as Wikipedia biographies, which means that a decision rendered at a point in time may lose its rationale later on – just as the Court acknowledges that something that was once relevant could become irrelevant over time, and thus subject to a takedown. Its argument cuts both ways. One way to deal with this is for redaction decisions to be limited in time. Successful claimants should register and maintain an email address for a reminder that a redaction is about to expire. Prior to expiration a claimant should have to seek to renew the redaction. That way the memory hole is temporary rather than permanent – and a redaction must be justified to account for changing circumstances.

Those who are against the right to forget in the first place should be cheered to see its first uncertain implementation pared back. And those who favor it should want to get it right – especially as, troublingly, there may be more types of requests, from more sources, to come. Such a treacherous path cannot be navigated without the transparency and accountability that we have come to demand of the sovereigns who govern us.

The preceding is republished on TAP with permission by its author, Professor Jonathan Zittrain, Faculty Director of the Berkman Center for Internet and Society at Harvard University. “Righting the Right to Be Forgotten” was originally published July 14, 2014 on The Future of the Internet – And How to Stop It.



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