Google ruling: Good question, bad answer
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Version 0 of 1. In 1847 the Duke of Brunswick sent his man servant to obtain a 17-year-old copy of the Harmer Weekly Dispatch. Though the limitation for libel actions at the time was six years, the duke succeeded in persuading the lord chief justice that the delivery of a single copy of the newspaper amounted to republication. It was not until the 2013 Defamation Act that the English law recognised that the Brunswick case should not be used to enable litigation against people downloading files from the internet. That the law struggles to keep up with the march of technology was further demonstrated this week by a European court of justice (ECJ) judgment in a case brought by a Spanish lawyer who sued Google because the search engine continued to link his name to a 1998 newspaper article about a lawsuit involving a debt. The court ruled that, while it was acceptable for the newspaper to continue to carry the article on its website, Google – as a "data controller" – could be required not to display links to it. It is as if a court allowed a book to remain in the British Library, but demanded that it should be expunged from the catalogue – and therefore effectively unfindable. The so-called "right to be forgotten" is a new concept for an age in which nothing is any longer ephemeral. The web makes the past current. The principle at stake is not so much privacy as visibility. The wish to bury the past or doctor history may be perfectly understandable. The Rehabilitation of Offenders Act 1974 was, for instance, a humane measure intended to allow people with comparatively minor convictions to live down their previous errors or crimes. In theory, a conviction that is spent is regarded in law as though it never occurred. The difficulty comes in trying to construct a law that makes practical sense. It is plainly inconsistent to treat one web address or url as permissible if published by a government or newspaper website but unlawful if published by a search engine. It creates a logistical nightmare for the likes of Google or Yahoo, forced to make multiple ethical and moral judgments which are more properly the concern of data or privacy regulators. Those difficulties are compounded by differences in geography – creating a Balkanised internet where varying results may be served in different territories. And it sets the internet companies on a slippery slope where they are being treated as data controllers or publishers rather than mere indexers and/or aggregators. The damage which this ruling can cause more than outweighs the court's good intentions to protect the individual rights of European citizens – a danger compounded by Viviane Reding, the European commissioner, in asserting that "the data belongs to the individual, not the company". In one sense, Google and other internet giants have only themselves to blame for a generalised hostility towards them in Europe. They frequently behave like monopolists, pay as little tax as possible and set up their headquarters on those EU member states with the loosest regulatory framework and most underfunded privacy commissioners. But it would be harmful to European digital innovation if such rulings were to cause Google and other companies to close their offices on this side of the Atlantic, or to create wildly differential legal hurdles for our own entrepreneurs. By treating search engines differently from the original publisher of an article, the court has effectively prepared the ground for the notion of other sites with huge amounts of traffic being forced to take down information that is otherwise perfectly legal and accurate. The practical consequences of such a path could amount to a chilling of speech, if not actual censorship. It is easy to predict how a new "right to be forgotten" will be created by those with much to hide – and the resources to do so – as much as people with a genuine, even deserved, wish to move on. |