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The EU’s Right to Be Forgotten: When Is Legal Information Not Actually Legal?

· May 16, 2014

What sounds like a surreal Monty Python joke is actually a serious question facing Internet users and companies following the ruling yesterday by the Court of Justice of the European Union, Europe’s highest court.

In the ruling by the full court against Google the court has decided that Google must remove from its index information relating to Mr Costeja Gonzalez. The trick here though is that this information is entirely legitimate according to Spanish law and the newspaper that published the story in 1998 is not publishing a correction. Copies of that story will remain on file in libraries.

Google will, however, need to remove links to the story from its index. This is equivalent to telling libraries that they can keep a copy of the newspaper on file, but that librarians must not tell anyone how to find it. Indeed, it may well be that the search systems of all libraries in the European Union will need to delete links upon request as well. And this to publications in the bowels of the building. This may create even more headlines.

The digital world has provided the general public, and specialists such as researchers and historians, the ability to find information quickly and cheaply, and to compare different sources. This is the essence of a plural, democratic society. This ruling will likely mean that the elite, those with access to well resourced libraries with well stocked back copies of newspapers, journals and books, will continue to be able to dig up information: legally available information. If they can find it in the library. The rest of us won’t, in the European Union at least.

Let us consider some of the possible effects.

Firstly, the decision seems likely to prompt other individuals to ask search engine providers, and similar companies, to remove links to information about them. Indeed there are already stories about politicians and paedophiles asking Google to be forgotten. Google will need to decide how to handle these. Is information about them ‘irrelevant’, or ‘no longer relevant’, two of the tests the court used? Does their identity need to be verified? Thinking about this takes staff, lots of staff if there are lots of requests. Arguably Google could afford to employ 100 staff members to do this. What about a startup? What about a public library?

As seems likely a startup with only 20 members of staff could not handle a process of this complexity despite having a very large index. It seems likely that they will therefore simply remove all links to relevant people, possibly without checking identity and without knowing whether the legal tests are met. After all, their job is to provide search, not to be a legal department. This will limit competition at a time when the EU is hoping for more competition in search.

Even if a company can afford to do this, and makes every effort to judge each case on its merits, this is privatised censorship: companies, not judges, will be deciding. This is dangerous territory.

This ruling may not only distort competition in search and related services. It may also distort competition between academic historians. Historians located with the EU may find information on things someone considers ‘irrelevant’ is impossible to find via search engines, including specialised ones in academic libraries. Historians located outside the EU will easily be able to find that same information as EU law does not apply.

The remedy for the disgruntled Portuguese historian may simply be to use a search engine located else in world, Brazil for example, so that his Brazilian colleagues don’t steal all the glory. VPNs and foreign search services to the rescue, unless we ban those that is.

As is often the case here at DisCo we are concerned about developments that stifle competition. This ruling therefore worries us as it looks likely to limit competition in the market for information, for researchers, for historians and all of us who depend on the knowledge economy. Which is, well, all of us.

James Waterworth is the Vice President of CCIA Europe.

European Union

DisCo is dedicated to examining technology and policy at a global scale.  Developments in the European Union play a considerable role in shaping both European and global technology markets.  EU regulations related to copyright, competition, privacy, innovation, and trade all affect the international development of technology and tech markets.