Do requests to delete data lead to an 'internet with borders'? Ombud Franz Krüger explores.
Spare a thought for Google. In the wake of a ruling by the European Court of Justice, the internet search giant has to set up extensive new machinery to deal with requests to take down embarrassing material.
It all began when a Spanish man, Mario Costeja González, tried to force the website of the newspaper La Vanguardia to take down a 1998 report about a state-ordered property auction, held to recover debts he owed. His problem was that the report came up prominently on any search for his name and he argued that this infringed on his right to privacy and was not relevant to his current position.
The case made its way through various courts and ended up in the Strasbourg court, which ruled that the newspaper report could stay but that Google needed to remove links to it.
It asserted the “right to be forgotten”, recognised in French law, although it allowed that there are limitations for people in the public eye.
The case has drawn widespread comment. The Index on Censorship said it made it possible for people to complain about any information about themselves they did not like. “This is akin to marching into a library and forcing it to pulp books.” The Wall Street Journal, strongly opposed to it like most United States commentators, said it heralds an “internet with borders”.
Certainly, the ruling changes the rules of engagement on the internet dramatically. In a practical sense, Google has quickly had to create a form for individuals to lodge their requests to remove links. Processes, protocols, people: all these are needed for what may be an avalanche of requests.
It is yet another sign of how fundamentally the internet has changed our lives. It puts our pasts within reach of anybody interested, and does so permanently. Previously, it was possible to escape one’s past by moving to a new town or by simply allowing the natural passage of time to allow memories to fade.
Finding information on somebody’s past was usually possible but it took hard work. Now, all it takes is a few keystrokes. (Somebody once called Facebook the place where teenagers do things that make them unemployable later.)
In general, easy access to the massive public record on the internet is a clear step forward. For journalists, the ability to connect apparently disparate dots about people in public life is an enormous boon. It is also harder for a crooked businessperson, for instance, to mislead the public by hiding his or her past.
But privacy is also a precious right, whose importance grows in tandem with concern about the ease with which governments can – and do – monitor the activities of citizens.
There are cases, and perhaps González is an example, when people should have the right to move on.
Although it was not about an electronic archive or search engines, a recent case before the South African Press Council illustrates the point. A man was convicted of murdering his wife many years ago, but served a relatively short period in jail after the court accepted that post-traumatic stress and depression had limited his mental capacity. In time, his criminal record was expunged and he gradually rebuilt his life.
His complaint was about the fact that a newspaper had dredged this up in reporting that he was being employed at a university as an investigator. Although the complaint did not succeed, it is hard not to feel sympathy with somebody in this kind of position. There was no suggestion that he posed any kind of threat, and the public interest in dredging up his past seemed slight.
Newspapers are increasingly faced with requests to take down posts. These are difficult matters: it is one thing to say the past should be allowed to fade naturally and that old scandals should only be revived for clear and good reasons. It is quite another matter to say that the record should be altered. In the Spanish case, significantly, the court did not decide the original report should be removed, only that it should not be that easy to find.
It is far more sensible to make sure that the record is augmented if it is wrong or misleading, either because of mistakes in the original or because of later developments.
Perhaps the real implication of all this for journalism is that it imposes a much greater responsibility to make sure that later developments on reports are properly captured.
It means making sure that, if the fact that somebody is charged with an offence is reported, the final outcome of the case is also reported and linked to the first story. Of course, the practical implications of doing this rigorously on already stretched newsrooms are enormous.
Harvard law professor Jonathan Zittrain wrote in the New York Times that a better alternative to the Strasbourg solution might have been to allow people being searched for to add a comment to the links thrown up – apparently a feature Google once experimented with.
It may well be that, in the future, better solutions than the Strasbourg ruling will be found to the challenge of balancing privacy and the public right to information on the internet.
For González, the ironic outcome of the case is that the past he wanted us to forget is now known far more widely than before.
The Mail & Guardian‘s ombud provides an independent view of the paper’s journalism. If you have any complaints you would like addressed, you can contact him at [email protected] You can also phone the paper on 011 250 7300 and leave a message.