The man who created the “right to be forgotten” not only jogged the memories of those who knew his past, but also brought his history to the attention of a wider, ignorant audience. Until he tried to get the Barcelona newspaper La Vanguardia to remove the story from its files, most of us had never heard of Mario Costeja González, let alone that he’d once had trouble with social security debts. He didn’t manage to force the paper to delete the story, but he did win a judgment from the European Court of Justice (ECJ) that Google must stop bringing it up in response to searches for his name.
We are, as a result, in a mess: since the judgment, Google has been getting 1,000 requests a day from people seeking the removal of stories that come up against their name. The search engine writes to publishers and tells them which articles it is pulling, but does not say who requested the action. So we learn that a controversial decision by a certain football referee, criticism of a senior banker, the foul-mouthed rant of a prominent solicitor will no longer be so readily available, but we are not told whether they are the figures who sought removal. Some stories that disappear may relate to nothing more than minor embarrassments; others are likely to report more contentious controversies and criminal offences.
No wonder lawyers who earn attractive fees from the management of their clients’ reputations are delighted to have a new weapon in their armouries. No wonder Martin Clarke, editor of Mail Online, responded with frustration after Google informed him that four articles from his website would no longer show up on its search engine: “It is the equivalent of going into libraries and burning books you don’t like.” It’s an attractive quote, but not entirely accurate. The “books” are safe, but not so easy to find. From now on, if we wish to establish whether the would-be councillor has a criminal conviction, we need to search individual newspaper websites, rather than rely on Google.
As so often, when we examine the operation of newspapers, there are certain ironies to be found. Not so long ago the industry was furious with Google for running off with its stories and making money out of them. Now that Google has started removing links, the industry is even crosser. We should remember too that the court’s decision is based on laws of data protection that were created to protect the public from the kind of corporate abuses of personal information that newspapers have been quick to expose — laws under which the media are granted many exemptions that allow them to store information. When the laws on data protection were drawn up, search engines were a feature of the future. Now they are here, they process data and they are not within the exemption granted to media, so they come within the data laws. This was not the ECJ indulging in a hostile act against the media.
The court’s decision was probably inevitable — though a House of Lords committee thought it fundamentally wrong — and was certainly unhelpful. The “right to be forgotten” has an all-too-catchy ring about it — the kind of phrase that will be taken up by those who believe what appears in newspapers should be the result of painstaking negotiation between the writer and those who are written about.
It doesn’t help that Google has some authority in the matter of whom it forgets and remembers. A team at the search engine has been set up to consider applications. The famous are expected to surmount a higher threshold to achieve anonymity. In other words, if you are in the public eye you shouldn’t expect the public to forget. Not that the search engine wishes to have this role in the first place: many see its initial willingness to engage in negotiations with complainants as a ruse. If it becomes inundated and there is a backlog of requests, perhaps the system will become unworkable.
Or, less helpfully, it will tend towards removal, on the basis that that is the quickest way to handle complaints.
In the meantime, there are three things the industry should do to ensure no one forgets: protest when Google — and other search engines caught by the law — drop a story without good explanation; tell readers what is happening; and keep site archives up to date so that diligent researchers can find stories without the help of Google. The rest of us can help too, by avoiding google.co.uk and going instead to google.com. The first operates under European law. The second does not.