Shades of grey in the right to be forgotten

Published - March 09, 2015 02:33 am IST

CHENNAI, 16/10/2014: A.S. Panneerselvan, The Hindu Readers' Editor. Photo: V.V.Krishnan

CHENNAI, 16/10/2014: A.S. Panneerselvan, The Hindu Readers' Editor. Photo: V.V.Krishnan

One of the consequences of living in a digital era is that a court ruling in one part of the world may trigger a reaction elsewhere. Following the ruling of the Court of Justice of the European Union against the search engine Google in the “Right to be Forgotten” case, there has been a spike in takedown requests. I have been receiving mails from readers, PR agencies, corporates and litigants seeking the removal of a story from The Hindu archives.

The requests are not restricted to old news items but include some recent high-profile reports of companies who lost out following the de-allocation of coal blocks by the Supreme Court. A builder wanted to remove the name of the building in which a fatal accident happened. Another writer wanted to take down a report of a court proceeding, as the case was later resolved through an out-of-court settlement. A writer from Delhi wanted to remove the web link for a story because a political party was using the report during the election to fix its opponents.

First, let’s look at the background to the European Union’s Court ruling. A Spanish citizen, Costeja González, was in financial trouble way back in 1998, and his home loan foreclosure notices appeared in a Spanish newspaper La Vanguardia . But because the original purpose of the notice to attract a potential buyer had lapsed, he wanted the newspaper to remove them. He lodged a complaint with the Agencia Española de Protección de Datos (Spanish Data Protection Agency, the AEPD) against the newspaper and against Google. The AEPD rejected the complaint against La Vanguardia , taking the view that the information in question had been lawfully published by it. On the other hand, the complaint was upheld as regards Google Spain and Google Inc, and the two companies were requested “to withdraw the data from their index and to render access to the data impossible in the future.” The case was escalated to the Spanish National Court, and later referred to the Court of Justice of the European Union.

Important aspects of EU Court ruling

The EU Court’s ruling covered three important aspects: the territoriality of EU rules, the applicability of EU data protection rules to a search engine and the right to be forgotten. The court ruled that even if the physical server of a company processing data is located outside Europe, EU rules apply to search engine operators if they have a branch or a subsidiary in a Member State which promotes the selling of advertising space offered by the search engine. On the applicability of EU data protection rules to a search engine, it maintained that search engines are controllers of personal data and Google therefore cannot escape its responsibilities before European law when handling personal data by saying it is a search engine. EU data protection law applies and so does the right to be forgotten. On the question of the right to be forgotten, the European Court held that individuals do have the right — under certain conditions — to ask search engines to remove links with personal information about them. However, it maintained that the right to be forgotten is not absolute and it always needs to be balanced with other fundamental rights, such as the freedom of expression and of the media.

The way Google responded to this ruling has raised many ethical and philosophical questions. A recent article in The Guardian by Julia Powles, a researcher in law and technology at the University of Cambridge, and Enrique Chaparro, an information security specialist of an Argentine digital rights organisation, talked about how Google determined our right to be forgotten, in the wake of the judgment, and what society loses when a private corporation rules public information. They argue that forgetting and remembering are complex, messy, human processes and that our minds reconstruct, layer, contextualise and sediment in a way that is vastly different from the world wide web. They cite the original research paper presented by Google founders Sergey Brin and Larry Page to draw our attention to the real problem: the black box algorithms of the search engines. Ms. Powles and Mr. Chaparro explain how the search engines take the entire corpus of unrelated, uncontrollable documents on the web and give it perpetual, decontextualised freshness.

The important takeaway from their article is: “The point of having rights against search engines is not to manipulate memory or eliminate information, but to make it less prominent, where justified, and combat the side effects of this uniquely modern phenomenon that information is instantly, globally, and perpetually accessible.” And this provides the rationale for The Hindu ’s policy on takedown requests.

Reports that have been published are factual accounts of events and have met the editorial standards of the newspaper. The archives section of the newspaper’s website is a repository of reportage and articles published at different points of time. The governing policy is to neither withdraw nor alter the content when the reporting itself was not in error or vitiated by any other factors. As the issue here is one of Internet search engines bringing up the material from a link, it essentially needs to be addressed to the search engines, and not the publisher of the material. The newspaper, based on its editorial judgment, may consider follow-up reporting if any subsequent developments warrant one. The Hindu ’s exemplary tradition of a general daily newspaper of record also comes from the fact that it studiously refrains from altering its published content.

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