A tsunami of misinformation has overwhelmed the ECJ’s ruling on Google: high-tech corporate America, NGOs and parts of the UK media are claiming that the judgement constitutes shocking defeat for the concept of freedom of expression. In support of this claim, these organisations are publishing statements that are simply not true.
This blog reviews this coverage in the hope that in this sea of error, a life-raft of objectivity can continue to float on the surface.
The UK Press has widely reported the case as creating an unrestricted “right to be forgotten” on demand; the Daily Express headlined its coverage as “EU rules Google must delete search results if requested because of 'right to be forgotten'” whilst the Daily Mail settled “EU court will force Google to remove people's personal data from search results on request” (my emphasis).
The USA dominated Computer & Communications Industry Association, which includes Facebook Inc., Yahoo, Google, and Microsoft, issued a colourful statement which claimed that the ruling "opens the door to large scale private censorship in Europe" adding that "our concern is it could also be misused by politicians or others with something to hide who could demand to have information taken down".
The USA press does something similar to the UK; the New York Times reports “European Court Lets Users Erase Records on Web”. However, my favourite headline was in the Irish edition of the Sunday Times; it ran a story on the judgement under the headline: “Future predators will use EU’s Google whitewash to cover their tracks”.
Google has widely misrepresented this judgment. According to yesterday’s Daily Telegraph (Wednesday 28 May 2014) Google’s Executive Chairman Eric E. Schmidt told shareholders: “A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know”. He added “from Google’s perspective that’s a balance, Google believes, having looked at the decision which is binding, that the balance that was struck was wrong.”
I should state that Google’s statement is not only misleading, it is simply plain wrong. Prior to the ECJ judgement, there was no balance between a “right to be forgotten” and freedom of expression, as freedom of expression always prevailed.
Even the NGOs that are concerned about freedom of expression have published commentary on the ECJ judgment that is way off-beam. Index on Censorship in its press release stated that the judgement “allows individuals to complain to search engines about information they do not like with no legal oversight” (my emphasis).
Index’s Press Release then dramatically continued: “This is akin to marching into a library and forcing it to pulp books. Although the ruling is intended for private individuals it opens the door to anyone who wants to whitewash their personal history”.
Clearly, that old newspaper adage is to the fore: “never let the facts get in the way of a good story”; perhaps, indeed, it is a case of “getting one's retaliation in first”.
So what are the facts?
Data protection has its roots in Article 8 of the Human Rights Convention and the respect for private and family life; freedom of expression has its roots in Article 10. These two Articles are always in contention and resolution of these two opposite objectives depends on the facts of the case. All the ECJ has done is said that when personal data are published on any website and a search engine is used to locate such personal data, this balance is engaged. In short, the Court has determined that it is no longer a one-way street for freedom of expression.
There is evidence that the Information Commissioner is already performing the balance between freedom of expression and privacy. It has been reported by this week’s Press Gazette (see references) that the Commissioner has not enforced the removal of a man’s fraud conviction from a newspaper’s website. The data subject’s argument was that the report related to an offence that happened in January 2000 and was now spent under the terms of the Rehabilitation of Offenders Act 1974; the personal data should therefore be removed.
According to the Press Gazette, the decision was made in March and focused on the Special Purpose exemption (Section 32 of the Act). The Gazette reported that the ICO took "a fairly broad view of what counts as 'processing only for the purposes of journalism' so as to ensure proper protection for the right to freedom of expression under Article 10 of the European Convention on Human Rights".
So if this balancing act happens now, why would one expect that the Information Commissioner would do differently with respect to the ECJ ruling on Google? This view is reinforced by what the Commissioner has just published re this judgement. He says:
“There are some who are seeking to draw out much wider implications of the judgment for freedom of expression in general. It is important to keep the implications in proportion and recognise that there is no absolute right to have links removed. Also, the original publication and the search engine are considered separately: the public record of a newspaper may not be deleted even if the link to it from a search website is removed”.
“We recognise that there will be difficult judgments to make on whether links should be removed. It is also important to remember that the exemption for journalism, art and literature under section 32 of the Data Protection Act can be applied by media organisations, bloggers and other publishers of information, depending on the circumstances”. Comment: look at the Press Gazette case mentioned above.
“We believe the judgment provides space to strike a balance between the right to privacy and the public’s right to know, recognising the role search engines play in facilitating access to information in today’s society. Guidance will be needed from data protection authorities to ensure search providers take the right approach”.
That is why I wrote in last week’s blog: “So, in ten years hence, I expect the Commissioner (or Courts) to be balancing conflicting interests, more or less in the same way, the Courts balance the public interest in cases involving the press. Guidance will be available and the fuss will pass over except for the occasional flare up on new issues of balance”.
Readers should wary of what they read on this judgment. Any commentary from search engine sources (e.g. Google, Yahoo!) and the UK press should be taken with a large pinch of salt as this is being used to season a huge slice of ulterior-motive pie.
Google because its revenue depends on providing complete searches as possible, and the UK Press because they are seeking supporters for their alternative Press Complaints regime (and their opposition to Leveson). Their support for freedom of expression is only half the story; the profit motive is the other half.
“C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González” can be downloaded from http://curia.europa.eu/juris/document/document.jsf?text=&docid=152065&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=257894
ICO commentary on the judgment on: http://iconewsblog.files.wordpress.com/2014/05/key-points-of-cjeu-case.pdf and on http://iconewsblog.wordpress.com/2014/05/20/four-things-weve-learned-from-the-eu-google-judgment/
ICO refusing to enforce the removal of personal data from a press archive: http://www.pressgazette.co.uk/fraudster-loses-bid-make-newsquest-remove-report-spent-criminal-conviction-online-archive
Computer & Communications Industry Association quote: widely reported - example on http://dailyread.me/article/140