Utterly forgettable – the ECJ’s Google ruling

Jonathan Lindsell, 4 July 2014

There has been outrage this week after reports that the controversial EU ‘right to be forgotten’ ruling has made Google remove links to public interest sites such as BBC economics editor Robert Peston’s blog.  The post was on former Merrill Lynch CEO Stanley O’Neal, who played a crucial part in the 2007 financial crisis, presiding over the massive sale of toxic assets.

Peston’s blog yesterday noted that the removal requests actually came from someone who’d commented on his article, not from O’Neal, indicating that a normal internet user was embarrassed by what they’d written years ago. That doesn’t, however, remove the danger that in other cases, the rich and powerful can scrub their own digital records clean to avoid legitimate scrutiny: Google, which processes c.90% of European search results, has received 70,000 whitewashing requests, which would destroy 267,550 search results. (The pages themselves not deleted.)

There are other examples of potential abuses, all noted (anonymously) by Google:

– a football referee who lied about a controversial penalty

– rumours about a former Law Society president’s conduct

– a Muslim job applicant accusing an airline of racism

– man convicted of child pornography possession

– a doctor with bad review record.

These examples show how dangerous the European Court of Justice’s ruling is. A single, controversial court can rule on supra-national questions for 560 million people, and as the highest court in the continent, is very difficult to challenge.

Ryan Heath, spokesmen for the relevant Commissioner Neelie Kroes, has distanced the EU from the Peston case, saying it was ‘not a good judgement’ from Google, as there was ‘reasonable public interest’ and the ruling shouldn’t allow anyone to ‘photoshop their lives’. This indicates dissent with EU institutional ranks. If the ECJ must make such pivotal rulings, it’s of the highest importance that the rulings come with appropriate direction and clarity, here lacking.

Heath suggested Google’s approach is “tactical…it may be that they’ve decided that it’s simply cheaper to just say yes to all of these requests.” That’s unsurprising, given the volume of requests, and Google not previously having a continental system for collective amnesia. How can anyone have imagined there wouldn’t be teething problems?

Transparency lobbyists see a craftier side to Google’s zealous application of the EU ruling. Jim Killock of the Open Rights Group argues Google are deliberately acting heavy-handedly to whip up anger and opposition. Alexander Hanff, Think Privacy Group’s CEO, accused Google of removing links unnecessarily “in order to apply political pressure into having the ruling challenged…effectively creating moral panic by making people believe that they are being forced to censor.” Without ECJ direction, this may be a reasonable tactic from Google, who denied suggestions they were misapply the ruling.

Until the issue has resolved, whitewash requests may backfire. Several media organisations have decided to maintain and update lists of articles to which links have been deleted, potentially undermining the judgment. Indeed, in cause célèbre cases such as Peston’s blog, the stories have gained far more scrutiny than they otherwise would have!