Big Brother's Right to Censorship and Erase History; Misplaced Hope For a "Limited Big Brother"

Let's take a look at disturbing aspects of censorship, in which thousands of references to people have virtually disappeared from the internet following an EU ruling on the "Right to Be Forgotten" in which individuals have the right to ask search engines to remove links with personal information about them.

Wikipedia provides the background for discussion.

The right to be forgotten ‘reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them.’ It has been defined as ‘the right to silence on past events in life that are no longer occurring.’ The right to be forgotten manifests itself in allowing individuals to delete information, videos or photographs about themselves from internet records, and thus prevent them from showing up on search engines.

In May 2014, the European Court of Justice ruled against Google in Costeja, a case brought by a Spanish man who requested the removal of a link to a digitized 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid. He initially attempted to have the article removed by complaining to the Spanish Data Protection Agency, which rejected the claim on the grounds that it was lawful and accurate, but accepted a complaint against Google and asked Google to remove the results. Google sued in the Spanish Audiencia Nacional (National High Court) which referred a series of questions to the European Court of Justice. The court ruled in Costeja that search engines are responsible for the content they point to and thus, Google was required to comply with EU data privacy laws.

Guardian Articles Hidden From Search Engines

With that background understanding, please consider EU's right to be forgotten: Guardian articles have been hidden by Google.

[Following] a European court ruling that individuals had the right to remove material about themselves from search engine results, arrived in the Guardian's inbox this morning, in the form of an automated notification that six Guardian articles have been scrubbed from search results.

Three of the articles, dating from 2010, relate to a now-retired Scottish Premier League referee, Dougie McDonald, who was found to have lied about his reasons for granting a penalty in a Celtic v Dundee United match, the backlash to which prompted his resignation.

Anyone entering the fairly obvious search term "Dougie McDonald Guardian" into google.com – the US version of Google – will see three Guardian articles about the incident as their first results. Type the exact same phrase into Google.co.uk, however, and the articles have vanished entirely. McDonald's record is swept clean.

The Guardian has no form of appeal against parts of its journalism being made all but impossible for most of Europe's 368 million to find. The strange aspect of the ruling is all the content is still there: if you click the links in this article, you can read all the "disappeared" stories on this site. No one has suggested the stories weren't true, fair or accurate. But still they are made hard for anyone to find.

There might be a case for saying some stories should vanish from the archives: what about, say, someone who committed a petty crime at 18, who long since reformed and cleaned up their act? If at the age of 30 they're finding that their search history is still preventing them getting a job, couldn't they make the case that it's time for their record to be forgotten? Perhaps – it's a matter of debate. But such editorial calls surely belong with publishers, not Google.

The Guardian, like the rest of the media, regularly writes about things people have done which might not be illegal but raise serious political, moral or ethical questions – tax avoidance, for example. These should not be allowed to disappear: to do so is a huge, if indirect, challenge to press freedom. The ruling has created a stopwatch on free expression – our journalism can be found only until someone asks for it to be hidden.

Publishers can and should do more to fight back. One route may be legal action. Others may be looking for search tools and engines outside the EU. Quicker than that is a direct innovation: how about any time a news outlet gets a notification, it tweets a link to the article that's just been disappeared. Would you follow @GdnVanished?

Cast Into Oblivion

It's not just the Guardian. Robert Peston on the BBC asks Why Has Google Cast Me Into Oblivion?

This morning the BBC received the following notification from Google:

Notice of removal from Google Search: we regret to inform you that we are no longer able to show the following pages from your website in response to certain searches on European versions of Google: Merrill's Mess

What it means is that a blog I wrote in 2007 [about the mess at Merrill Lynch] will no longer be findable when searching on Google in Europe.

Which means that to all intents and purposes the article has been removed from the public record, given that Google is the route to information and stories for most people.

So why has Google killed this example of my journalism? 

Now in my blog, only one individual is named. He is Stan O'Neal, the former boss of the investment bank Merrill Lynch.

My column describes how O'Neal was forced out of Merrill after the investment bank suffered colossal losses on reckless investments it had made.

Is the data in it "inadequate, irrelevant or no longer relevant"?

Hmmm.

Most people would argue that it is highly relevant for the track record, good or bad, of a business leader to remain on the public record - especially someone widely seen as having played an important role in the worst financial crisis in living memory (Merrill went to the brink of collapse the following year, and was rescued by Bank of America).

Big Brother

Michael Krieger on the Liberty Blitzkrieg blog quotes George Orwell "Who controls the past controls the future. Who controls the present controls the past."

Krieger picks up on the Guardian Tweet idea...

Every time an article gets censored it should be highlighted. If we could get one Twitter account to aggregate all the deleted stories (or perhaps just the high profile ones) it could make the whole censorship campaign backfire as the stories would get even more press than they would have through regular searches. Ah…the possibilities.

Interestingly, due to all the controversy, a European Commission spokesman has come forth to criticize Google for removing the BBC article. You can’t make this stuff up. From the BBC:

Google’s decision to remove a BBC article from some of its search results was “not a good judgement”, a European Commission spokesman has said.

40,000 Censorship Requests in First Hour

Paul Bernal, writing for CNN asks Is Google Undermining the 'Right to be Forgotten'?

In the commentary I wrote for CNN the day after the ruling in the Google Spain case, I suggested the result created a headache -- and potentially huge costs -- for Google, and that it could open the door to a flood of cases, each of which would need a resolution.

I wrote that how Google responded to the ruling would be critical -- and the initial signs are that the company's response has already caused problems.

As predicted, Google received a huge volume of requests to have links removed -- more than 40,000 in the first four days after the ruling. The company has now begun the process of responding to them.

In both Ball's [Guardian's] and Peston's cases, many of the stories that they had been notified about did not seem to fall into categories covered by the Google Spain ruling: old, irrelevant stories about people who were not public figures. Ball's stories included pieces from 2010 and 2011 -- scarcely old -- while Peston's covered critical events in the banking world in 2007 -- the ousting of banker Stan O'Neal from Merrill Lynch -- something that cannot be described as irrelevant or not in the public interest.

It looked as though this was exactly what the opponents of the right to be forgotten were worried about: censorship and the rewriting of history.

Was it, in fact, that Google were overreacting -- either that they were, as Peston put it, "clumsy" or that, perhaps, they were deliberately attempting to undermine the ruling by making it seem either unworkable or a dangerous form of censorship.

That Google might be deliberately undermining the ruling seems possible; all three parts of their response could contribute to this view.

Firstly, they seem to be erring on the side of the people wishing for things to be blocked -- and hence they do create more censorship.

Secondly, by alerting about far more search results than are actually affected by the rulings, they create an atmosphere in which people feel more censored.

Thirdly, by the form which their notification to journalists takes, they make journalists feel censored -- and might make strong, important and expert journalists into allies in their attempts to undermine the ruling.

The combination of these three is a potent one.

On the other hand, it is possible that it is simply clumsy, and that these are teething troubles.

The individual cases that have made the headlines have begun to unravel a little: Google has reversed its decisions on James Ball's pieces, recognising there is a public interest. Peston's piece is more interesting.

The assumption Peston made, reasonably enough, was that the link would be blocked when people search for Sean O'Neal, since his was the only name that appeared in the article in question.

But in fact, it turns out that the request to block the story related to a member of the public whose name appeared in the comments on the piece -- the link removed relates to searches for that person. Searching for Sean O'Neal still brings up the article.

Hope For a "Limited Big Brother"

Krieger notes that Google has now received 250,000 removal requests. Should Google really have to filter through every one of them, but only for Europe?

Bernal is sympathetic to a limited form of "Big Brother" writing "The most important thing that Google can do in response to the court ruling is to engage positively and actively with the ongoing reform process of the Data Protection Regime. A well-executed reform, with a better written, more limited and more appropriate version of the right to be forgotten could be the ultimate solution here."

Is a "limited big brother" really possible?

I side with Pater Tenebrarum at the Acting Man blog who pinged me with this thought: "The Right to Be Forgotten is their first significant step through the backdoor to enable internet censorship."

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com