The EU's Google Ruling and Our Right to History

by Aaron Bradley on May 13, 2014

in Search Engines

Google and the EU: We Also Have a Right to History

Today's European Union decision that Google must be compelled to remove links, at a user's request, to information about a user that is (somehow) judged to "inadequate, irrelevant or no longer relevant" is all sorts of terrible.

In the several hundred intervening years between the birth of Gutenberg and the birth of Google, millions of damning pieces of information have been published about individuals. The fact that this information has only been available digitally doesn't mean that it has, until now, been inaccessible. Through most of recent history access to such information has been provided through printed indexes.

Are libraries or newspapers or any other organizations that maintain printed indexes required, in response to a complaint from an individual that the information linked by such an index appears "to be inadequate, irrelevant or no longer relevant or excessive … in the light of the time that had elapsed"? Perhaps they might in light of this ruling (at least for such organizations that are commercial entities), but I rather doubt that we'll see a cadre of clerks hired at The Guardian anytime soon so that they can dutifully black out entries in the printed index of their newspapers.

Yet this is precisely what the EU is asking Google to do. The ruling has misguidedly, foolishly, thoughtlessly, shortsightedly made (or tried to make) search engines a special sort of index. It's no less burdensome to require Google to assess individual cases and purge its index than it would be for the British Library. In what I think betrays very fuzzing thinking about the technologies, the court has seemingly carved out digitally-indexed information as belonging to a special class without revealing why this is the case. The fact that it's easier to Google someone's name than it is to trot down to the library to conduct the same research has exactly zero bearing on a document that's accessible through both methods. Are search engines to be punished for their efficiency in organizing the world's information?

Furthermore – even if you somehow restrict the notion of "inappropriate permanent indexation" to digital – enterprise search engines are hardly the only place where you'll find links to information about individuals. Does this mean, then, that newspapers that had published a factually accurate a story need to at a subsequent point flush that story from their index of searchable articles and ensure that no other story or widget links to that article, even though they're legally permitted to continue to host that article to their servers.

I think that with that example that one can see how such strictures devolve into a de facto censorship in relation to digital information. A web page that exists but isn't accessible through any link may as well not exist. One can imagine the (very legitimate) outcry if the courts compelled news publishers to remove factually accurate, already-published information from their servers because it was deemed to be "no longer relevant" (a notion itself that I find impossibly subjective), yet this is in effect what this ruling accomplishes.

Which brings me to the point that I inevitably keep coming back to: why on earth is the onus being put on the organizers and indexers of information to delte links to information rather than on publishers to delete the information itself? If this information is "bad" enough to be forgotten, then surely it's "bad" enough to deleted.

More fundamentally, this ruling threatens the continued existence of accessible historical record. Things happen. We write about those things, take pictures of them, voice opinions about them. And these records become part of our collective history. This ruling suggests that individuals, not society, should henceforth be the guardians of such historical records when they relate to individuals. I think that's absurd, and arbitrary, and dangerous. Even classified government information is eventually made available to that government's citizens, but at face value those links Google is required to remove are seemingly gone forever.

(In passing I wonder, too, about the Internet Archive. Does this put the information it not only provides access to but stores at risk?)

Furthermore, the chilling effect of this extends to our ability even to generate historical records. The Guardian's James Ball makes many excellent points in his analysis of the EU ruling, but his wrong-headed conclusion is a terrifying object lesson in the potential repercussions of this ruling.

In the meantime, social networks and activity are shifting from the permanent – Facebook – to the transient – Snapchat – showing that technology and culture are already starting to fix the permanence problem. That's a much better way: privacy is great, but it needs baking in from the start. Trying to clumsily reverse-engineer it into the system through law is an act of hubris.

No, shifting from "the permanent … to the transient" is not "a much better way" but rather the beginning of the end of history. In the digital age the zeros and ones we produce are our history. To preemptively ensure that the information we produce is impermanent puts on a path where our history may not only be more easily forgotten, but not even recorded in the first place.

UPDATE (14 March 2014) – This concise article by Jeff John Roberts on Gigaom summarized the issues nicely, I thought, and two thumbs up for his paragraph describing what the ruling means for Google and other tech companies:

The ruling says Google is now considered a “data controller” and no longer a simple intermediary; it is now accountable for search listings even though it has nothing to do with the underlying content. This represents a fundamental shift in long-established principles of internet law, and presents a potentially enormous technological and regulatory headache for Google and other tech companies.

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