Some years ago a survey found that 92% of journalists used the web for researching and investigating stories. This survey did nothing except raise the question of what the other 8% were doing!
The centrality of Google to today’s journalism has led many to rename the search engine a ‘reputation engine’. Those tasked with managing or policing the content of Google search results for their clients have a potentially valuable new tool in the form of a recent judgment by the European Court of Justice (ECJ).
Facts of the case
Sixteen years ago, a Spaniard named Mario Costeja Gonzalez hit financial difficulties. To resolve them he put a property that he owned up for auction. The auction notice of his home was covered in a newspaper listing which subsequently went online. Mr Gonzalez put his financial problems behind him and moved on with his life. Until recently, however, Google searches of Mr Gonzalez’s name continued to throw up the newspaper’s list from 1998 and Mr Gonzalez argued that on-going access to the historic listing damaged his reputation and amounted to a misuse of his personal data and so should be removed by Google from its search results. The ECJ agreed with him and, in doing so, set an important precedent for Europeans and the autonomy over their private information.
The precedent set by the judgment rests on three well-established principles. First, individuals in Europe have a fundamental right that data-processing systems must respect their right to privacy. Second, an individual’s personal data must be processed fairly, which means ensuring that any data collected must be accurate and, where necessary, kept up to date. Third, an individual has the right to request that any inaccurate personal data that is collected about him or her is either erased or rectified.
As a consequence, any information about an individual that is out of date, inaccurate or no longer relevant should be taken out of search results if the person involved requests it – the concept that has become known as ‘the right to be forgotten’.
These principles have formed the bedrock of European data protection since 1995 and have been supported by the English courts. In 2009, the Supreme Court handed down a judgment concerning the esoteric matter of what information should be provided by the police to the Secretary of State for inclusion in an ‘enhanced criminal record certificate’. Lord Hope’s opinion anticipated the right to be forgotten, when he stated, ‘… the systematic storing of [this] information in central records means that it is available for disclosure… long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person’s private life which must be respected.’
It is important to remember that in Mr Gonzalez’s case, the historic list itself will remain accessible online via the website of La Vanguardia - the newspaper that published the piece in the first place. However, the list will not be indexed by Google and therefore will no longer be thrown up by searches of Mr Gonzalez’ name. The judgment requires Google and other search engines to edit searches on request in certain circumstances where old, inaccurate or irrelevant data remains accessible.
The ECJ’s ruling in Mr Gonzalez’s case is consistent with the established legal framework in Europe and with the wide-ranging overhaul of the law that we can expect in the next year with the anticipated data protection regulation.
Can you now get Google to remove articles about your clients from its searches?
It depends. First, you need to examine the nature of the information in question and its sensitivity for the individual concerned. In other words, how far does continued accessibility to the information by the general public impact on the individual’s private life?
Second, you need to examine the competing public interest of whether the public should have continued access to the information regardless of the fact that it might be old, inaccurate or irrelevant. According to the judgment, this will come down to whether the individual concerned has a role in public life. In other words, the information will only be removed if the impact on the individual's privacy is greater than the public's right to access it.
For example, a chief executive will find it harder to remove an old article about his arrest for drunk driving than his chauffeur would.
The public interest
In essence, the usefulness of the judgment as a tool for those managing reputations online will come down to how successfully they can argue the case for their client’s privacy against the public interest of maintaining disclosure.
The only way to answer the question is with a clear and workable understanding of the concept of the public interest… or are we better off without a definition? Should we simply adopt Justice Potter Stewart’s test that we know it when we see it? This view rests on the presumption of shared interests and, by extension, a shared sense of right and wrong. By and large that presumption holds good in a relatively small society like ours and we do, in very broad terms, share a sense that exposing crime, protecting public safety and preventing the public from being misled are all in the public interest.
In 2012 the British Journalism Review and YouGov conducted a survey on how the British public interpret the public interest and found a reassuring convergence of opinion between Joe Blogs and Lord Justice Blogs. For example, some newspaper editors are convinced that high-profile England footballers have a role model status that elevates the public interest in tales of their extramarital romps. However, 58% of those polled disagreed, believing this to be a private matter that should not be published. Approximately a third thought it should be published even though it may not be in the public Interest. Only one in 20 thought the footballer’s affair was a clear public-interest issue deserving publication.
The strength of the concept of the public interest lies in its lack of definition and its ability to adapt to changing circumstances and social mores. Compare today's consensus on what constitutes ‘immoral’ behavior, where it is private and legal, with the consensus of ten years ago. Before one seeks to define the public interest one needs to ask what value does a definition have? Does it make the concept clearer and more workable or merely shift the debate to one of interpretation?
Ofcom, The Press Complaints Commission, the BBC and the Information Commissioner have all, in their own way, defined the public interest for us - one is no more or less helpful than the other and they state the extremes and the obvious on which it’s easy to agree. They don’t grapple with the grey area between what is in the public interest and what is simply interesting to the public which is most often the battleground and where you have to look to the courts for direction.
Freedom of expression is, in itself, in the public interest. In Rio Ferdinand’s 2011 privacy claim against MGN Limited, Mr Justice Nicol observed that ‘Freedom of expression applies to banal and trivial expression as well as matters of public interest, but where that right has to be balanced against the rights of others to protect their privacy, the extent to which the content is of public interest or contributes to a debate of general interest assumes a much greater importance. Indeed, the contribution which the publication makes to a debate of general interest is the decisive factor’.
Equally, there is a corresponding public interest in the protection of private information. Everyone, whether a public figure or not, needs a private space protected by law. The protection of an individual's privacy and their autonomy over their private information is just as much a public good as the freedom of expression.
Whilst the concept of the public interest is not always the same as what interests the public, the distinction shouldn't be drawn too heavily. Journalism is, in Andrew Marr's words, ‘the industrialisation of gossip’ after all. Although entertaining readers is not, in itself, in the public interest, keeping the public interested enough to buy the newspaper or subscribe to the channel is vital. As Lord Dacre pointed out in 2008, ‘… if mass circulation newspapers, which also devote considerable space to reporting and analysis of public affairs, don’t have the freedom to write about scandal, I doubt whether they will retain their mass circulations, with worrying implications for the democratic process’.
Perhaps the ECJ was lucky in the case of Mr Gonzalez where it was relatively easy to see why his right to privacy should usurp Google’s right of access.
Index on Censorship said that the judgment, ‘… allows individuals to complain to search engines about information they do not like with no legal oversight’. They also added that ‘… this is akin to marching into a library and forcing it to pulp books’. There is, of course, both legal and regulatory oversight in the form of the courts and the statutory data protection agency set up in each European member state, such as our Information Commissioner’s Office. In addition, the assessment of whether the information should be removed from a search engine is not determined by its desirability but by its accuracy.
The suggestion that the right to be forgotten extends to the removal of information that you might find undesirable is wrong. Such subjective criteria as to whether the information is prejudicial to the individual have no place in the court’s assessment which is rooted in the more objective criteria of ‘… inaccurate, irrelevant or out of date’.
It is also important to stress that information would not - at least under the guidelines of the judgment - be deleted from the internet and they just wouldn't appear in search results. This is an important distinction. In 2012, Viviane Reding, the European Commission's vice-president, said: ‘It is clear that the right to be forgotten cannot amount to a right of the total erasure of history.’
The BBC has reported that Google, ‘… has said it is looking closely at the implications. But privately, it is said to be furious’. Media reports elsewhere say that Google has announced it is working on a link removal tool.
Will the judgment skew the war to police the internet? We should not be surprised if some of the less reputable are first in the queue to use the judgment as a tool for trying to erase their misdeeds from search engine results. Google has the resources to weed out the illegitimate claims - but would smaller or start-up search engines have the same resources?
The courts acknowledge that people's lives change over time, so the information about them online should reflect this. The judgment is concerned with rectifying or removing information that is out of date. However, just as information can become irrelevant, so it can become relevant again. What if Mr Gonzalez were to encounter further financial difficulties in the future? What would that do to the relevance of the newspaper listing from 1998?
The judgment is a valuable assertion of David’s right to autonomy over his personal information against the economic interests of Goliath’s search engine. However, another David – Aaronovitch – writing in The Times, raised the concern that, ‘… somehow we feel that privacy belongs to us, while freedom of expression is about someone else… I’d place my faith in the increasing ability, helped by the democratisation of information provided by the internet, of people to make reasonable judgments and cope with knowledge. Freedom of expression in the end is about trusting people. Privacy fetishism, such as that displayed by the court, is about trusting no one’.
The question is whether the gain to personal autonomy is at the expense of freedom of expression and, if so, whether that gain is disproportionate? In response, the ECJ has not lost sight of the fact that the two competing interests of the individual’s right to privacy and the public’s interest in unqualified access to information have equal weight and each case has to be decided on its merits.
It is easy to acknowledge that each case will have to be decided on its facts and the competing interests. But what if the interpretation of those interests differs from one European jurisdiction to another? Is the French view of what is or is not in the public interest the same as the English or German?
Perhaps a more constructive frame of reference with which to examine the significance of the judgment than the emotive language of rights and privacy and freedom of expression, is simply one of accuracy.
When considering how useful the judgment is, the starting point must be whether the information you want to remove from the search engine is inaccurate. The free and easy access to false information is an increasing problem for society. It is not in the public interest for the public to be misled.