In May 2014, the European Court of Justice (ECJ) ruled that under European law, people have the right to have certain information about them delisted from search engine results. The ECJ ruling was called the “Right to be Forgotten”, despite it having little to do with forgetting (c’est la vie). Shortened as RTBF, it is also referred to more clinically as the “Right to be Delisted” (or simply as “Google Spain” because that was one of the parties in the court action). Within just a few months, the RTBF has triggered conferences, public debates, and a TEDx talk.
Google itself did two things very quickly in response to the RTBF ruling. First, it mobilised a major team to process delisting requests. This is no mean feat — over 200,000 requests have been received to date; see Google’s transparency report. However it’s not surprising they got going so quickly as they already have well-practiced processes for take-down notices for copyright and unlawful material.
Secondly, the company convened an Advisory Council of independent experts to formulate strategies for balancing the competing rights and interests bound up in RTBF. The Advisory Council delivered its report in January; it’s available online here.
I declare I’m a strong supporter of RTBF. I’ve written about it here and here, and participated in an IEEE online seminar. I was impressed by the intellectual and eclectic make-up of the Council, which includes a past European Justice Minister, law professors, and a philosopher. And I do appreciate that the issues are highly complex. So I had high expectations of the Council’s report.
Yet I found it quite barren.
Recap – the basics of RTBF
EU Justice Commissioner Martine Reicherts in a speech last August gave a clear explanation of the scope of the ECJ ruling, and acknowledged its nuances. Her speech should be required reading. Reicherts summed up the situation thus:
Everyone concerned acknowledges there are tensions in the RTBF ruling. The Google Advisory Council Report mentions these tensions (in Section 3) but sadly spends no time critically exploring them. In truth, all privacy involves conflicting requirements, and to that extent, many features of RTBF have been seen before. At p5, the Report mentions that “the [RTBF] Ruling invokes a data subject’s right to object to, and require cessation of, the processing of data about himself or herself” (emphasis added); the reader may conclude, as I have, that the computing of search results by a search engine is just another form of data processing.
One of the most important RTBF talking points is whether it’s fair that Google is made to adjudicate delisting requests. I have some sympathies for Google here, and yet this is not an entirely novel situation in privacy. A standard feature of international principles-based privacy regimes is the right of individuals to have erroneous personal data corrected (this is, for example, OECD Privacy Principle No. 7 – Individual Participation, and Australian Privacy Principle No. 13 – Correction of Personal Information). And at the top of p5, the Council Report cites the right to have errors rectified. So it is standard practice that a data custodian must have means for processing access and correction requests. Privacy regimes expect there to be dispute resolution mechanisms too, operated by the company concerned. None of this is new. What seems to be new to some stakeholders is the idea that the results of a search engine is just another type of data processing.
A little rushed
The Council explains in the Introduction to the Report that it had to work “on an accelerated timeline, given the urgency with which Google had to begin complying with the Ruling once handed down”. I am afraid that the Report shows signs of being a little rushed.
- There are several spelling errors.
- The contributions from non English speakers could have done with some editing.
- Less trivially, many of the footnotes need editing; it’s not always clear how a person’s footnoted quote supports the text.
- More importantly, the Advisory Council surely operated with Terms of Reference, yet there is no clear explanation of what those were. At the end of the introduction, we’re told the group was “convened to advise on criteria that Google should use in striking a balance, such as what role the data subject plays in public life, or whether the information is outdated or no longer relevant. We also considered the best process and inputs to Google’s decision making, including input from the original publishers of information at issue, as potentially important aspects of the balancing exercise.” I’m surprised there is not a more complete and definitive description of the mission.
- It’s not actually clear what sort of search we’re all talking about. Not until p7 of the Report does the qualified phrase “name-based search” first appear. Are there other types of search for which the RTBF does not apply?
- Above all, it’s not clear that the Council has reached a proper conclusion. The Report makes a number of suggestions in passing, and there is a collection of “ideas” at the back for improving the adjudication process, but there is no cogent set of recommendations. That may be because the Council didn’t actually reach consensus.
And that’s one of the most surprising things about the whole exercise. Of the eight independent Council members, five of them wrote “dissenting opinions”. The work of an expert advisory committee is not normally framed as a court-like determination, from which members might dissent. And even if it was, to have the majority of members “dissent” casts doubt on the completeness or even the constitution of the process. Is there anything definite to be dissented from?
Jimmy Wales, the Wikipedia founder and chair, was especially strident in his individual views at the back of the Report. He referred to “publishers whose works are being suppressed” (p27 of the Report), and railed against the report itself, calling its recommendation “deeply flawed due to the law itself being deeply flawed”. Can he mean the entire Charter of Fundamental Rights of the EU and European Convention on Human Rights? Perhaps Wales is the sort of person that denies there are any nuances in privacy, because “suppressed” is an exaggeration if we accept that RTBF doesn’t cause anything to be forgotten. In my view, it poisons the entire effort when unqualified insults are allowed to be hurled at the law. If Wales thinks so little of the foundation of both the ECJ ruling and the Advisory Council, he might have declined to take part.
A little hollow
Strangely, the Council’s Report is altogether silent on the nature of search. It’s such a huge part of their business that I have to think the strength of Google’s objection to RTBF is energised by some threat it perceives to its famously secret algorithms.
The Google business was founded on its superior Page Rank search method, and the company has spent fantastic funds on R&D, allowing it to keep a competitive edge for a very long time. And the R&D continues. Curiously, just as everyone is debating RTBF, Google researchers published a paper about a new “knowledge based” approach to evaluating web pages. Surely if page ranking was less arbitrary and more transparent, a lot of the heat would come out of RTBF.
Of all the interests to balance in RTBF, Google’s business objectives are actually a legitimate part of the mix. Google provides marvelous free services in exchange for data about its users which it converts into revenue, predominantly through advertising. It’s a value exchange, and it need not be bad for privacy. A key component of privacy is transparency: people have a right to know what personal information about them is collected, and why. The RTBF analysis seems a little hollow without frank discussion of what everyone gets out of running a search engine.