Sunday 19 November 2017

The 'Great Redaction' will have chilling effect on truth

The Court of Justice of the European Union has issued a ruling on Google search results
The Court of Justice of the European Union has issued a ruling on Google search results
Adrian Weckler

Adrian Weckler

Imagine you walk into a library to research something. And imagine you find the library's index card system littered with black 'redacted' lines where the names of book-referenced people were.

You ask the librarian what's going on and whether he knows which aisle a book based on a particular person might be. The librarian tells you that the book is, indeed, in the library but that he is not allowed to tell you the aisle or shelf on which it is located.

This is because the person you have asked about has invoked his 'right to be forgotten' and, by law, the library is no longer allowed to inform you of where to find the (still lawfully published) book he is mentioned in. In other words, the book remains legal and stocked, but telling you where it is, or how to get to it, is now illegal. The librarian tells you that your only option is to wander about, checking every book yourself to see if you can find the reference material.

It sounds a little crazy. And yet, this is a crude analogy of what happened last week when the European Court of Justice ruled that any individual may now pick and choose which article and website links turn up when someone does a search for them by name. It's called the 'right to be forgotten'. Advocates call it a breakthrough in online privacy. But others are calling it The Great Redaction and warning of a chilling effect on access to truthful, sometimes uncomfortable information.

Under the new Europe-wide law – there is no appeal from the ECJ – anyone can now demand that their 'personal data' is removed from search results. That translates into links that show up in Google, Yahoo, Bing, Facebook, LinkedIn, Twitter, The Daily Mail, or any number of other online information resources with some sort of search facility.

Some people will love this. For example, countless Irish businessmen can now conduct large sweeps of search engine results to try and alter any negative (or disappointingly neutral) references to their business affairs. In fact, anyone who knows what they're doing can shape quite a picture of themselves online from here on in.

It wasn't supposed to turn out this way. Normally, the ECJ follows the reasoning and position of the system's 'Advocate General', Niilo Jaaskinen. In this case, he argued about the chilling effects on media access and freedom of expression. He argued that "suppressing legitimate and legal information that has entered the public domain would entail an interference with the freedom of expression of the publisher of the web page".

The court, though, has rejected that view. Instead, it appears to have chosen privacy as a superior right to expression and freedom of information.

What we are now left with is a situation where an article can be completely truthful, accurate and legal, but a named individual's desire for it not to be found can make it illegal to link to from a search for that person.

And we must spare a thought for the poor old Data Protection Commissioner, whom the European Court of Justice appears to have made arbiter of whether Google, Yahoo, or anyone else can be allowed to turn down requests for link deletion based on a 'public interest' exception. The data protection office isn't thrilled about it.

"We are still considering the full implications of the judgment but we consider that the rights of individuals in relation to data deletion would first have to be asserted with Google, with data protection authorities becoming involved where the individual's request made to Google in the first instance was not satisfied," said a spokesman for the office.

For businesses, there are pros and cons. The new law allows company executives to expunge links to unflattering content from discoverability, so long as it's not considered 'public interest' by the Data Protection Commissioner. For businesses seeking to research potential partners, though, it's a big step backwards.

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