The ECJ ruling that individuals be allowed to request that search engines remove links to web pages which mention them, the so-called “right to be forgotten,” has come in for a lot of support and a lot of criticism. It raises a lot of questions as to whether the law is enforceable.
Some of the biggest criticisms raise notions of censorship and attempts to change history and the historical record. One of my biggest concerns is that the search engine company is judge and jury, and the “defendant” – the person or organisation behind the “offending” page – is not informed of the request unless and until the request to remove has been upheld and the link removed. There is no right of appeal.
In a well-publicised case, the unlinking of Robert Peston’s 2007 blog post on Merrill Lynch Merrill’s mess, it seems that the unlinking request was made, not by the only person named in the original post, but by one of the 27 people who commented on the post. Peston’s own comments are thoughtful and revealing: Why has Google cast me into oblivion?
The ECJ ruling applies only to EU countries. Search engines outside the EU are unaffected by the ruling, and this has been trumpeted as a get-around. If you suspect that google.co.uk or google.es are withholding results, you might still find those unlinked-in-the-EU-pages by using google.com.
It is worth noting that requests to unlink have to be made to individual search engines, so it is still possible for a lesser-known EU-based search engine to carry links still.
Phil Bradley has blogged on why this ruling was unworkable from the start. In The insanity of ‘being forgotten’ he makes several arguments against the ruling. In a more recent post, Right to be forgotten already broken, he offers an analysis of how and why unlinking does not work, and offers a few more get-arounds. Noteworthy are the use or non-use of quotation marks around the sought-for name, a suggestion of reversing the name (lastname firstname) in the search bar, and the notion that the search engines cannot always recognise a name. His piece is well worth a look. (Note of personal interest: I have added a comment to his analysis, highlighting more curiousities.)
We should all be concerned. The “right to be forgotten” seems to allow the re-writing of history. We get upset when politicians edit Wikipedia articles to change their voting record, or a company tries to make out that a disaster was not as bad, at the time or in the aftermath, as the press reported. At least with Wikipedia, the history of changes is unaffected and can still be found (under the history tab). Misleading and inaccurate edits can be corrected – if spotted.
If a web-page has the facts wrong, then the resort should be to get the web-page changed, corrected, retracted, not to make it invisible. In some cases, the complainant might need to go through the law courts, suing for libel and defamation. Otherwise, the page should stand, the record remain.
Unlinking offending pages might make them more difficult to find, but they are still there. With the first few unlinking cases made public, the Streisand effect comes into play: nobody knows, remembers or cares – until you make a fuss, and then everybody knows. Search engines are linking to stories and blog posts about the original unlinked post, and these stories often include links to the original “offending” post.
Meanwhile (and I use this word carefully), I see a report in the Independent David Cameron accused of misrepresenting A&E waiting times to Parliament. It seems that Prime Minister Cameron used the arithmetic mean of waiting times until first assessment by Accident and Emergency hospital staff to suggest that waiting times have been cut by more than half under the coalition government. He three times ignored warnings from House of Commons library staff that
- the use of the arithmetic mean was misleading,
- the median waiting time is a better measure (and this has been unchanged for many years), and
- the time until actual treatment is an even better and more meaningful measure than the time to first assessment – and that this waiting time has increased over the last few years.
It appears that a member of the House of Commons library staff had pointed this out in the official HoC library blog, but the post Have A&E waiting times fallen? has been removed “as it does not meet our expected standards of impartiality.”
Wrong to be forgotten?
Update : 4 July 2014, 18.39
I missed the original post. I did catch the retraction:
A revised post has been posted, headed by a note explaining the revision, with the assurance that the analysis of the data has not changed, only “the description of the Prime Minister and Health Secretary’s use of these statistics” :
Same headline, same URL (and same date): Have A&E waiting times fallen?
You can’t help but wonder…?