The Right to be Forgotten. The Good, the Bad and the Ugly

Kieron O’Hara 21 April 2015

Or …

• The mumblings of a technologist unencumbered by knowledge or experience

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A Force of Nature

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The Right to be Forgotten?

• No traditional rights here

• Right of erasure?

• Specific rights over certain information?

– Droit à l’oubli

• Right to object?

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The Right to be De-Indexed

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The Right to be Forgotten?

• “The biggest threat to free speech on the Internet in the coming decade” – Jeffrey Rosen

• “The right to be forgotten, as such, does not exist” – Frank La Rue

• “A ‘right to be forgotten’ is really really bad for privacy” – Rick Falkvende

• “well-meaning but incoherent” – Jimmy Wales

• “will push the internet further towards fragmentation” – The Economist

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The Good.

Much to Like …

• Proportionate effect on free speech

– Privacy rights here not well-established

• Difference between public information and information gathered in a dossier

– Purpose of searching on a name

• Google is neither the Web nor the Truth

– Two myths of completeness

• Rejects the ‘neutral corporate black box’ view of algorithms

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… and More …

• Recognises jurisdictional/power/territorial issues

– Applies to certain domains, power of default

– Search engine activity in the context of Google Spain’s advertising business

• Restores practical obscurity, friction in information flow

– Arbitrariness

• Restores some control to subject

– Cf. rehabilitation of offenders

• Requires reasons, can be overridden 9

… and Still More

• Google can cope

• Information life cycle affects quality

• Resistance to Big Techno

• Rule of law v technological determinism

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The Bad.

Some Serious Issues

• What is the position for 3rd party publishers?

– No right to be listed

• Google can cope – but what about barriers to entry into the search market?

• Individual needs to identify URLs

• The search engine is the judge of major privacy/free speech issues

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The Ugly.

Role of the Court

• Court’s decision was in the broad direction of travel

– Aggressive pursuit of data protection rights

– Interpreting terms broadly

– Use of Charter of Fundamental Rights, not ECHR

• Independent

– Ignored advocate general

– Didn’t wait for a consensus among DPAs

• Internal EU conversation

– No sign the regulation will be very divergent 14

Potential Futures

• Data protection – the new libel?

• Closing down transparency

– Bavarian Lager decision

• Is Google Inc. really a data controller?

– Decision of convenience?

– How widely does this go?

• Can this be enforced at scale?

– Compliance

• Hard to see compromise with US 15

Can the Tech Help?

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The Decentralised Web

• Personal data management technology

– Personal data stores

– Storing data

– Linking to data

– Storing and applying policies/preferences

– Handling credentials

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A Structure for Compromise?

• PDS stores relevant details

– URLs of pages with outdated/excessive information

– Metadata (Google form)

– Specifications of the information to be reviewed

• PDS hosts dialogue

– DPAs/search engines annotate metadata

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A Structure for Compromise?

• Search engines

– Drop the myth of completeness

– Proactively seek PDSs associated with search terms

– Proactively seek information to exclude

– Voluntary code of practice

• Social contract – trust between data subject and handlers

• Recognise third category between controller and processor

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Atlantic Bridge?

• PDSs could help a shift from data protection to contract

– Respecting the autonomy of the data subject

– Might help improve notice-and-consent regime

• Search engines’ free speech isn’t threatened

– Voluntary code

• Potential for harvesting the metadata from PDSs

– Understanding the nature and scale of common problems

– Comparison with DPA case law

– Comparison with FTC jurisprudence

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Final Thoughts

• CJEU & Google Spain

– Interesting, subtle judgment

– Not a pretty process of achieving it

– Cf. Bismarck, law and sausages

• The past is fixed, its interpretation isn’t

– Search engines are part of the interpretative process

– They are not a neutral provider of raw materials

• This kind of forgetting is an active process

– Therefore it must come with accountability attached 21

Disclaimer

• Texts, marks, logos, names, graphics, images, photographs, illustrations, artwork, audio clips, video clips, and software copyrighted by their respective owners are used on these slides for non-commercial, educational and personal purposes only. Use of any copyrighted material is not authorized without the written consent of the copyright holder. Every effort has been made to respect the copyrights of other parties. If you believe that your copyright has been misused, please direct your correspondence to: kmo@ecs.soton.ac.uk stating your position and I shall endeavour to correct any misuse as early as possible.

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