The outgoing Ontario Information and Privacy Commissioner Ann Cavoukian, whose time in office has been hugely, and globally, influential (see in particular Privacy by Design) has co-written (with Christopher Wolf) an article strongly criticising the judgment of the Court of Justice of the European Union (CJEU) in the Google Spain case.
For anyone who has been in the wilderness for the last few weeks, in Google Spain the CJEU ruled that Google Spain, as a subsidiary of Google inc. operating on Spanish territory, was covered by the obligations of the European Data Protection Directive 95/46/EC, that it was operating as an entity that processed personal data in the capacity of a data controller, and that it was accordingly required to consider applications from data subjects for removal of search returns. Thus, what is loosely called a “right to be forgotten” is seen already to exist in the current data protection regime.
Many have written on this landmark CJEU ruling (I commend in particular Dr David Erdos’s take, on the UK Constitutional Law Blog) and I am not here going to go into any great detail, but what I did take issue with in the Cavoukian and Wolf piece was the figurative comparison of Google with a public library:
A man walks into a library. He asks to see the librarian. He tells the librarian there is a book on the shelves of the library that contains truthful, historical information about his past conduct, but he says he is a changed man now and the book is no longer relevant. He insists that any reference in the library’s card catalog and electronic indexing system associating him with the book be removed, or he will go to the authorities…
…The government agent threatens to fine or jail the librarian if he does not comply with the man’s request to remove the reference to the unflattering book in the library’s indexing system.
Is this a scenario out of George Orwell’s Nineteen Eighty-Four? No, this is the logical extension of a recent ruling from Europe’s highest court
(I pause briefly to say that if I never see another reference to Orwell in the context of privacy debate I will die a happy man).
I’m fond of analogies but Cavoukian’s and Wolf’s one (or maybe it’s a metaphor?) is facile. I think it could more accurately say
A man walks into a library. He sees that, once again, the library has chosen, because of how it organises its profit-making activities, to give great prominence to a book which contains information about his past conduct, which is no longer relevant, and which it is unfair to highlight. He asks them to give less prominence to it.
Cavoukian and Wolf accept that there should be a right to remove “illegal defamatory” content if someone posts it online, but feel that the issue of links to “unflattering, but accurate” information should be explored using “other solutions”. (I pause again to note that “unflattering” is an odd and loaded word to use here: Mr Gonzalez, in the Google Spain case, was concerned about out-of-date information about bankruptcy, and other people who might want to exercise a right to removal of links might be concerned by much worse than “unflattering” information).
I don’t disagree that other solutions should be explored to the issue of the persistence or reemergence of old information which data subjects reasonably no longer wish to be known, but people are entitled to use the laws which exist to pursue their aims, and the application by the CJEU of data protection law to the issues pleaded was, to an extent, uncontroversial (is Google a data controller? if it is, what are its obligations to respect a request to desist from processing?)
Cavoukian and Wolf criticise the CJEU for failing to provide sufficient instruction on how “the right to be forgotten” should be applied, and for failing to consider whether “online actors other than search engines have a duty to ‘scrub’ the Internet of unflattering yet truthful facts”, but a court can only consider the issues pleaded before it, and these weren’t. Where I do agree with them is in their criticism of the apparent failure by the CJEU, when giving effect to the privacy rights in Article 8 of the European Convention on Human Rights, and Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, to consider adequately, if at all, the countervailing rights to freedom of expression in Article 10 of the former and Article 11 of the latter. In this respect, the prior Opinion of the Advocate General was perhaps to be preferred.
The key word in my replacement library ananolgy above is “chosen”. Google is not a passive and inert indexing system. Rather, it is a dynamic and commercially-driven system which uses complex algorithms to determine which results appear against which search terms. It already exercises editorial control over results, and will remove some which it is satisfied are clearly unlawful or which constitute civil wrongs such as breach of copyright. Is it so wrong that (if it gives appropriate weight to the (sometimes) competing considerations of privacy and freedom of expression) it should be required to consider a request to remove unfair and outdated private information?