I’ve written an op-ed for the New York Times about the European Court of Justice’s ruling finding a “right to be forgotten.” After that and my initial blog post in reaction to the court’s ruling, I wanted to share some further thoughts on this fascinating and potentially far-reaching development.
First, a refresher on the facts:
A man named Mario Costeja González objected that a Google search on his name turned up two foreclosure announcements published in a newspaper from 1998 seeking buyers of his property to satisfy unpaid debts — debts that were apparently genuine, but that were old enough that, in his view, they should remain obscure rather than a quick search away.
The court agreed, in a ruling and press release that noted, with his name, the very facts that Mr. González sought to bury. That oddity points to a subtlety in the court’s holding: for the first time, the legal problem isn’t in the availability of material on the Web, but rather in its searchability.
So the court implies that Google should be ready to remove links specific to searches on an objecting person’s name. How will it know whether to go ahead and remove the information? Well, says the court,
if it is found, following a request by the data subject [...], that the inclusion in the list of results displayed following a search made on the basis of his name of the links to web pages published lawfully by third parties and containing true information relating to him personally is, at this point in time[...] appears, having regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, the information and links concerned in the list of results must be erased.
Adds the court:
[I]t should in particular be examined whether the data subject has a right that the information relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name. In this connection, it must be pointed out that it is not necessary in order to find such a right that the inclusion of the information in question in the list of results causes prejudice to the data subject. [...]
[These] rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.
This is coherent in theory — the court is trying to balance competing values — but it seems nearly hopeless in practice. It’s tricky enough to ask that search engines eliminate links to allegedly copyright-infringing material — too often the party demanding the deletion isn’t really describing an infringement and isn’t even the party holding the copyright, and search engines are poorly positioned to judge. Figuring out what’s “inadequate, irrelevant or no longer relevant,” is an unanchored standard, and I imagine that, to be safe, Google will just start eliding nearly anything on request — especially if it will owe damages if a court later finds it blew the balancing. It’s even more complicated when the complexities of implementation of ECJ decisions throughout the EU’s respective state court systems is taken into account. That’s what makes me much less sanguine than, say, the author of this CNN opinion piece placing a lot of weight on the court’s balancing test to vindicate genuine free speech interests. If the court is serious about seeing this test applied, perhaps, as Alex Karman suggests, aggrieved people should make a stop at the courthouse first, having a judge review the request and then make an order to Google. That could also help create a formal record of takedowns — after all, as the ECJ decision says, something formerly relevant could become irrelevant, but the opposite is also true: something irrelevant could become relevant, such as when a private figure becomes a public one. How to restore those relevant disappeared search results?
Early reports suggest lots of understandable interest by Europeans seeking line item vetoes on search result pages. (Indeed, people in other countries will start wanting it, too.) As my colleague Samuel Klein points out, Google could even be caught in the middle as spurious requests are made for removal — what happens for those who discover that the search results that reflect best upon them have been removed at the request of a mischief-making imposter? If Google limits these redactions to those accessing it from Europe, will Americans need to codge access from a European IP address to check to see what’s been wrongly redacted in their name?
All of this might be reason to rue the court’s decision and be done with it.
Except: What are the ten things that most define you in the eyes of others? That would be the ten organic links at the other end of:
https://www.google.com/search?q=yourfirs…
Google enjoys 93% market share in Europe. If you want to learn about a stranger, you search on his or her name, and if you’re searching, you’re using Google.
And that is why I found myself ruminating on the idea I unpack in the NYT op-ed. That landing page on a search for someone’s name has outsized importance. Our only solace in the status quo is that what appears there is largely untouched by human hands, for better or for worse — Google spits out whatever, in its inscrutable AI wisdom, is “relevant” to the words your name comprises. But given the special status of that page to the people whose names are represented by the search terms, there might be something worthwhile to appear there that isn’t just ten links out of the Google sorting hat. The second page — you know, the one with links 11-20 that might as well be in Siberia — could contain the unadulterated search. We’re already trained to expect some smarter processing by Google and Bing when we are searching for flights, or shoes, the weather, or even how many centimeters are in 42 inches. House ads can appear, and, of course, precious sponsored links.
To include a free ”house ad” by the people implicated by a search on their name — like the free credit report they’re entitled to, along with a shot at correcting inaccurate information held by a credit bureau — would do far less violence to search engines’ business models, and more important, their integrity, than the court’s current decision. When a single corporate actor becomes the gatekeeper for our identities, using formulas it can’t fairly be asked to reveal, there’s reason to think something more might be offered. Without taking into account the meaning of that landing page to the identity and reputation of the person searched, the AI will simply get better on its own terms — and perhaps the next refinement of “relevance” will be to assemble political donations, arrests, home address, and kids’ names all on that first landing page. That public data is all typically available with a few searches, a level of practical obscurity we may realize we value only if it, too, vanishes. It’s worth thinking more broadly about this before that happens.
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Additional recommend reading: Zeynep Tufekci on the controversy.
The preceding is republished on TAP with permission by its author, Professor Jonathan Zittrain. “The Ten Things That Define You” was originally published May 15, 2014 on The Future of the Internet – And How to Stop It.