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Will the Right to be Forgotten Censor the Internet?

Following the European ruling that means search engines have to take down links to embarrassing stories, has the right to be forgotten put us on a slippery slope to censorship?

The landmark ruling of the European Union Court of Justice earlier in May held that it was a responsibility of search engines to remove outdated or 'irrelevant' search results hosted by third parties. 

At the time, EU justice commissioner Viviane Reading hailed the decision as a "clear victory for the protection of personal data of Europeans". However some see this ruling marking the start of greater internet censorship as links are removed and information becomes harder to find.

In a debate at the Law Society in London this week, chief executive of campaigning at charity Index on Censorship, Jodie Ginberg, said her organization had four main concerns over the ruling; clarity, consistency, accountability and lack of recourse.

“We do believe that making things much, much harder to find is indeed a form of censorship,” said Ginsberg. Another problem she cited was the vagueness of the ruling.

“It leaves the door open to a fairly wide interpretation of what is irrelevant, out-dated or inappropriate,” she said.

We do believe that making things much, much harder to find is indeed a form of censorship

Ginsberg said that there could be a lack of consistency as different search engines addressing various individuals could come to different conclusions about the same piece of information. She said this was “rather problematic”.

She added that her organization had concerns about putting decisions over very important pieces of information in the hands of private companies. Ginsberg said official guidelines are needed on who makes these decisions and how they are made.

Ginsberg added that whilst an individual has recourse to a data commissioner if a search engine does not remove a link, there is no such recourse for publishers or individuals to argue against links being removed that are in the public interest.

She said that freedom of expression rights are gradually being eroded in favour of privacy rights in the digital space.

Fellow panellist on the debate Stewart Room, a partner at PricewaterhouseCoopers, said that as is the nature of courts, hard decisions have to be made and address a new phenomenon. Large technology companies or “internet superpowers” were the “gatekeepers to the cyber-world and all of the data within”, he said.

“The power of the internet technology giants to penetrate the private space is rivalled only by that big governments,” said Room. ”Global web search is global superpower.”

But he added that despite all the problems the judgment threw up as well as the challenges, the judgement was correct.

“Data controllership as understood by the directive [was what] the courts were applying. Web search, as a matter of technological fact, is data controllership. So the judgment could only go that way.”

Mark Stephens a solicitor at HowardKennedyFSI LLP said a fundamental point about this case was that “the law was not prescribed by law”.

“I challenge anyone to go away and read what is accepted by the outside as a sub-optimal judgement and is indeed that. At the very best it is opaque.”

Stephens is concerned that academics carrying out research are going to be denied information through the right to be forgotten. “If you want to look into someone's life then you will not be able to do that unauthorised academic research or work,” said Stephens.

He said the ruling “really comes down to ‘nanny knows best’”.

“The right to oblivion is actually the right to curate and mislead about one's past. It is the unintended consequence of the data protection directive of 1995.” Stephens urged the public to “speak against the right to rewrite history”.

Johnathan Bamford, head of Strategic Liason at the Information Commissioner’s Office said that the limited availability of personal information can have an affect on lives but asked if we should let an “information Wild West” exist without proper rules. “You might call it the nanny state, I call it the rule of law”.

“There will be some real difficult cases to consider and there is a real balance that needs to be struck between private interest and public interest. Balancing fundamental rights should not be an easy job. It should be a challenge because they are so important to us,” he said.

Bamford said a duty is owed to making sure that we “learn from these real cases and come up with clear consistent guidelines so that people understand the effect of this judgment and what we would require in terms of data protection.”

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