Tuesday, 01 July 2014 12:26

Google privacy ruling: Should bad debtors have the 'right to be forgotten'?

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EU legislators have been working for two years on a 'right to be forgotten' - specifically, the right to request that information about your past should be removed from the Internet, or made inaccessible when people search for your name on a search engine.

But this week, the Court of Justice of the European Union seemed to find a 'right to be forgotten' already in European law, in a preliminary ruling relating to a case brought by a Spanish man against Google and its Spanish subsidiary.

The case dates back to 2010, when Spanish national Mario Costeja Gonzalez brought action with the Spanish Data Protection Agency, the AEPD, requesting that details of his past be removed from the Internet.

In particular, the large daily newspaper La Vanguardia had two articles on its website, dating back to January and March 1998, about a real estate auction that occurred after recovery action was taken against Mr Costeja Gonzalez for social security debts.

Mr Costeja Gonzalez wanted the articles to be removed from the Internet, and also wanted Google Inc and Google Spain to remove all links to the articles.

The verdict is a baffling one - the AEPD ruled that La Vanguardia had lawfully published the information at the time that it was relevant, and therefore did not have to delete or alter the articles, but that Google must not include it in their search results.

Google appealed, the case was referred to the EU Court of Justice, and on May 13th 2014 the court upheld the original decision on the grounds that Google's crawling of the web constitutes the collection of personal data, and that this data must therefore not be displayed in search results once it is no longer relevant.

Now you search me, now you don't...

The big question is, should people be able to hide their past sins simply by instructing Google not to index certain third-party pages?

It is not entirely clear if this ruling can affect anyone other than Google - the court was only able to claim jurisdiction at all because Google sell advertising space through their Spanish office, meaning their search results are arguably able to be governed by Spanish and EU law.

But what about Bing, Yahoo!, and smaller site-specific search engines? What about fee-based credit reference agencies, should they be subject to censorship too, or would a bad debt from 16 years ago still be considered relevant?

search

And indeed, if you were a contractor or a company approached by Mr Costeja Gonzalez and were considering entering into a credit agreement with him, would a past bad debt not be deemed relevant anyway?

The EU Court of Justice ruling makes clear that the interests of the debtor outweigh the interests of potential creditor:

"In as much as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of Internet users potentially interested in having access to that information, the Court holds that a fair balance should be sought in particular between that interest and the data subject's fundamental rights, in particular the right to privacy and the right to protection of personal data.

"The Court observes in this regard that, whilst it is true that the data subject's rights also override, as a general rule, that interest of Internet users, this balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject's private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life."

Although it speaks of balance, the significant statement there is that "the data subject's rights override the interest of Internet users" - that is, that the general public should not have access to information about an individual if the individual does not want them to.

In any event, this ruling would be worrying, but it is deeply concerning that the EU Court of Justice would make such a decision specifically in an instance of hiding a past bad debt, while still acknowledging La Vanguardia's right to keep the articles on their website.

Why allow the articles to remain, if they are to be de-indexed from Google? Why take action against Google and not the actual publisher of the information - as clear an example of 'shooting the messenger' as has probably ever been seen? And why hand individuals the power to pick and choose what third-party reports about them are allowed to appear in search results?

The ruling raises concerns ranging from freedom of speech and freedom of the press, to net neutrality and fair access to matters of public record - and while the European Commission are championing it as good news for EU citizens who want to control their online profiles, it seems like a decision that flies in the face of everything the Internet stands for.

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