Don't You (Forget About Me)

Will the new right to be forgotten and the principle of privacy by design stifle innovation or protect our fundamental rights?

A landmark judgement by the European Court of Justice on the 13^th May 2014 sent shockwaves down the internet community when it ruled that ordinary citizens have the right to request the removal of links about them from Google’s search results because the lapse of time from the original publication of the information on the Internet made such links “irrelevant and outdated”.

The decision revolved around a request made by a Spaniard against Google wherein he claimed that Google’s indexing of a 1998 story regarding the re-possession of his house and which featured on a Spanish electronic news site breached his privacy, especially when you consider that a Google search for his name still featured the story prominently.

The decision is setting a major precedent to principle of the ‘right to be forgotten’ as proposed in the new EU General Data Protection Regulation. The Court however added that such right is not absolute, especially when particular reasons exist such as the data subject’s role played in public life.

Whilst Google initially stated that the decision was “disappointing”, EU Commissioner Viviane Reading hailed it as a “clear victory of the protection of personal data of Europeans”. Only a few days later, Google launched its service to allow EU citizens to request for the removal of personal data from its search results where it will assess each request and balance “privacy rights of the individual with the public’s right to know and distribute information”.

It will indeed be very difficult to balance our personal right to privacy with the public’s right to know This will create an incredibly huge bureaucratic burden on Google, as well as other tech companies, which may be tempted to just accede to the requests received without entering into the merits as to whether the right to be forgotten, or the right to oblivion, should apply in that particular case in consideration.

Many are those who are saying that the effects of this landmark ruling might potentially stifle innovation and the way in which technology is changing our social norms and hunger for information will surely feel the effects of this judgment. Other commentators went as far as claiming that this might push technology related investment out of Europe. Wikipedia founder Jimmy Wales heavily criticized the judgement terming it “wide-sweeping internet censorship”. I believe that the truth lies somewhere in between and much will depend on the way in which the right to be forgotten will develop and be applied in practice.

It is still early to establish the effect that this decision will have on our ability to control our personal data, our right to informational self-determination. This ECJ judgement points the way towards the possibility of internet users to take back control of their online information and pushes data protection principles into the 21^st century. These concepts, also re-affirmed by the EU General Data Protection Regulation including the right to be forgotten, privacy by design, and privacy by default, will indisputably have an effect on technological innovation. The trick will be, as always, to strike the right balance which might prove to be a chimera.

Way back in 1984 Scottish band Simple Minds were offered to record a track that had already been declined by others, most notably Billy Idol and Brian Ferry. The result was a smash hit that catapulted Simple Minds to stadium rock stardom. Thirty years ago, during the “digital stone age”, internet search engines were still a fantasy with exception for the academic writings of Professor Gerald Salton. Thirty years later, nobody can fathom internet life without Google. Our ability to find everything on the net through Google is shaping our whole lives. Google is always there for us when we need it and its search algorithms and indexing mechanisms are constantly being fine-tuned for that same purpose.

One can reminisce the lyrics of the Simple Minds’ track: “Won't you come see about me?, I'll be alone, dancing, you know it baby, Tell me your troubles and doubts, Giving me everything inside and out”.

Even though the ECJ ruled that the link on Google’s result should be removed, it did not order the removal of the original story on the Spanish news site. This is somehow also reflected in the EU General Data Protection Regulation which provides wide exceptions arising from journalistic freedoms. Google and the original publisher of the story are two distinct and separate data controllers with distinctive rights and obligations.

But the Internet is more than Google. The internet never forgets. It will still know your troubles and doubts and wants your everything, inside and out. The fact that Google’s crawling might not be part of that equation is only part of the story.