Comment Google appears to be "complying" with the so-called European "right to be forgotten" ruling in a way which has helped convicted criminals to give their reputations an unexpected boost.
We know this from media organisations which have helpfully listed the stories Google won’t return in its search results. The Telegraph does so monthly, and the BBC published a list today. In both cases, Google has seemingly ignored considerations of public interest when removing links.
As the Times notes, in several cases child abusers and rapists have been the unexpected beneficiaries of the way Google is "complying" with the so-called European "right to be forgotten" ruling. A nanny was jailed for assaulting a baby - she broke its arm - someone asked, and Google has removed the link to the story. Links to another BBC story in which a man admitted manslaughter won’t be returned by Google either.
Do you think there’s a public interest in knowing about convicted criminals? Of course there is.
Google perhaps hopes that if it removes links to stories in which there’s a clear public interest, this will turn the public against European privacy law and the ruling that it applies to Google. But it’s a high-risk strategy: the so-called “memory hole” is actually one of Google’s own creation. Google is not being forced, helplessly, to “act as Judge and Jury”, as serial dissembler Jimmy Wales repeatedly claims.
What actually happened is that in the Gonzalez vs Google Spain case judged by the European Court of Justice (CJEU) last year, Google was ordered to comply with European privacy obligations. The company had fought this hard - going so far as to structure the company to sidestep the law - and even argued it didn’t really do business in Europe. Not surprisingly, the Judges rejected this. The location of the servers was a technical irrelevance, trumped by the question of moral responsibility.
In their judgment, the European Judges did not actually create a new “right to be forgotten”. They emphasised that the system had to balance two fundamental rights: the right of the public to know, and the right of individual to have a private life. If Google wasn’t sure, then it could simply refuse a request and thus bounce difficult requests to the relevant national data commissioner, who would decide.
Just to make sure of Google knew its obligations, the Judges pointed out that information had to be "inadequate, irrelevant or no longer relevant" for an applicant to succeed. This would seem to rule out figures in public life wanting details related to their professional lives from succeeding in scrubbing them away … or serious criminals: under UK law, a conviction resulting in a sentence of more than four years is never "spent" under the Rehabilitation of Offenders Act. In serious criminal cases the public interest is unambiguous.
However, someone who has committed no major crime - or merely done something embarrassing - should usually be allowed to have it forgotten at some point rather than having the incident follow them around on the internet forever.
How do ordinary people who have done ordinary things, for whom the law was designed, fare? It's difficult to say. No deletion requests have been sent to the ICO for the Courts to decide – Google has acted as judge and jury, voluntarily. Google says it has removed 39,000 links and declined to remove 66,000 in the UK. In many cases, academic Julia Powles explained to us, it’s an incidental character such as a witness who actually lodged lodged the request rather than the subject of the story. Requesters are understandably reluctant to attract publicity. Until an academic conducts a credible study.
Yet from the Telegraph and BBC lists, it's clear that people convicted of serious crimes are getting their reputations cleaned – even if they didn't request the original deletion. Surely that's the opposite of what the law intended: Google is rewarding the guilty.
In case we forget why giving ordinary people privacy is popular, spare a moment to consider the example quoted by Robert Shrimsley in the FT last year.
At a concert last year at Slane Castle in Ireland, a drunken teenage schoolgirl performed what the Telegraph would have described as “a sex act” on two men. This was unwise in a crowded field full of people with smartphones. The images went viral and she was widely derided and shamed.
Because of her age, major websites removed the most graphic pictures. But an image search leaves little to the imagination. Her face is blurred and her name absent but no one looking to complete the jigsaw will be long detained.
It is, of course, her fault, but people do stupid things and few merit perpetual global humiliation.
Slane girl could be anyone’s daughter, of course. You can see why there's a case for some correctly applied digital forgetfulness. Anyone who hasn’t done something embarrassing probably hasn’t lived very much.
As Powles wrote in the Guardian this year: “This is what is at stake here: our own rightful sovereignty over our life stories, our personal narratives, our communications and even our very memories themselves”.
The European Court observed last year that Google has a reputational power over the sovereign territory of the individual that far exceeds that of any single media organisation. Perhaps only Wikipedia (which has a similarly carefree attitude to responsibility) can do such damage. Google was continually republishing, on multiple media, non-stop.
Punishment by Google lasts a lifetime, and beyond. Google is in the business of “perpetual global humiliation”, and it isn’t going to allow a mere court ruling to stop it. Politicians could force it to comply with the ruling properly, of course. But that would require two things.
They would have to understand how European privacy law works, and many who approve of privacy in the abstract won’t say anything in favour of a privacy right in practice, as it implies praise of the EU. Then they would have to risk antagonising Google.
Few seem willing to take on that challenge – mindful of what happens when elected officials do that. ®