European Court of Justice to Google: It is #righttobeforgotten but not #righttoberemembered

Google
Did you always feel bad about that weird drunk photo your girlfriend had taken a few years ago and was posted on your Hi5 profile? How disappointed did you feel when you saw that if you Google your name, that horrible photo is still at the first 10 results even though you have today lost both the girl and your Hi5 account?

Guess what. As of 13 May 2014 you are able to contact Google about this ‘majour’ issue that puts your ‘conspicuous’ image under serious risk and then Google will have to listen to you and probably stop sourcing your odd photo at its results. Happy now? Well, to be frank I’ m not!

The European Court of Justice (ECJ) ruled a couple of weeks ago that the short 1998 article describing the Spanish Mario Costeja to have social security debts should not be among the Google results that bring the search of his name. ECJ allegedly protected in this case Mr Gonzalez’ “right to be forgotten”. But what about the “right to be remembered”?

While on one side every data privacy activist would be initially jumping from joy on this decision, I am wondering if this is thought well enough. First of all, since your girlfriend had tagged that photo with your name, it means that Google should link it with a Google search about you; otherwise their spider is ill. The fact that there is not plenty and better content on the web about you than that idiotic photo brings this bad moment of your student life in the first five results of Google about you. Is it Google to blame for this? I am afraid not! Just create some better content about yourself on the web, back link it substantially and this photo will be automatically undermined. Is it possible to send Google requests every once and a while to ‘erase’ our bad Web moments?

First of all, there are major technical issues about that. Who will process those claims, who will judge whether the “right to be forgotten” surpasses “the right to be remembered”, who will take the case to court and who will pay the bill for all that? Moreover, if my clumsy Web result is not shown in Google Belgium, will it be hidden also from Google France and what about Google Canada? According to recent reports after ECJ’s verdict earlier this month, thousands of claims popped up in Google’s ‘mailbox’ from people and companies to stop showing specific results in their profile Google search. Sources also claim that many of them consist of previously convicted criminals that do not want their bad deeds to be on top of Google when someone Googles their names. My goodness! Can ECJ or any sane data privacy activist weigh the implications that something like that has to the society? Do they have the right to forget or do we have the right to remember in this case?

It seems that there is a lot going on here than doesn’t meet ECJ’s eye. Big technical and societal issues apart, I opine that the freedom of the Internet is also at stake here. What do we really want from Google, Bing and all the info access points of our browsers? Do we want them filtered and biased or to obey to individual claims by former convicted pedophiles (sources from UK press support that some of the claims to Google were made by people that were distributing child pornography)? Or do we want them to do their job, scan with their robots the Web following specific code principles, which by the way is their IP, to bring to our eyes the most powerful content about anything in terms of how much it is being discussed and linked to? Honestly, I would go for the second option. I want to believe that everyone that has enough occupied space between his ears wants an absolutely free Web where major stakeholders like search engines are not mandated by any government or organisation to change the way they work.

What is next? Should we expect in Europe soon the story of Google China to be repeated? Not to forget that there the search engine giant refused to filter its results according to the policy of the Chinese government and hence they had to move to the ‘more liberal’ Hong Kong to do business. Do you see this as an extreme? Give Google 1.000.000 EU claims per day to filter anything from ugly photos to content about ex-cons and I will tell you then if they will stay in the Old Continent or they will leave us to the hands of smaller alternatives like Bing of Microsoft. And even in that case, what if Bing starts getting claims after that to filter Web content? Then courts will rule search engines and we will be protagonists of a Spielberg movie where in 2100 we will all look and act the same, since we will all have access to the same info.

My strong point here is that this decision began a vicious circle that can grow exponentially and endanger freedom of speech and access to information, if not examined properly. At the same time, Google and the peer are not saints either. There is a lot covert info on the way they operate, the code they use and how they scan Internet content from Papua islands to Madrid and bring it to our screen in milliseconds. Not to forget here the big EU investigation against Google by DG Competition that started at the end of 2010 and almost 4 years later no decision has been made to fine or not fine the Internet giant. And all this despite the fierce company (e.g. Microsoft) and government (e.g. French Economy Minister Arnaud Monterbourg, German Economy Minister Sigmar Gabriel) will to frisk Google spider for multiple reasons. The reason for this huge delay can surely be anything from the complexity of the matter, to prove the way Google results operate is unfair to competitors like Bing, to the huge money spent by the Google lobbyists in Brussels or the unwillingness of Commissioner Almunia to take the full responsibility of the most important case in the history of Internet in the EU and his sly tactics to give away this welcome present to the next Commissioner soon to come.

Don’t get me wrong here. Google’s antitrust case needs to be examined to the fullest and if there is the slightest issue of unfair competition, it needs to be settled yesterday, but not only to put 6 billion euros in the EU pocket but most importantly to secure a free and neutral Web. But an antitrust investigation is one thing and to tell Google not to show the photo of an ex-con is another. Coming back to the “right to be forgotten”, which certainly makes sense, I would like to remind here to the judges of ECJ the huge “right to be remembered” and their duty to compose the balanced magic formula that will have the right significant coefficients to decide which of the two “rights” prevail per case. Setting free an immense flow of random claims to a search engine, with no specific legal frame on how to process and react on them, is not serious enough, I think.

At the end of the day, why our friend Mario did not contact directly the publisher of this ‘unfair’ information about him? Why should the search engine be blamed because the publisher has good back link SEO strategy and brings anything to the Google top or there were little things written for Mario on the Web? Overall, yes check the antitrust investigations thoroughly, make sure that there is a profitable Web market for everyone to grow, but in general don’t shoot the search engines! We can make sure their code does not create monopolies of information accessibility but once this is alright we should not filter them by any means.

Not in democracies! Certainly not in Europe!

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