Privacy watchdog takes first step against those undermining right to be forgotten

It's not erasing the past, just making memories fuzzier. chalboard by sergign/shutterstock.com

The UK’s data privacy watchdog has waded into the debate over the enforcement of the right to be forgotten in Europe.

The Information Commissioner’s Office issued a notice to Google to remove from its search results newspaper articles that discussed details from older articles that had themselves been subject to a successful right to be forgotten request.

The new reports included, wholly unnecessarily, the name of the person who had requested that Google remove reports of a ten-year-old shoplifting conviction from search results. Google agreed with this right to be forgotten request and de-linked the contemporary reports of the conviction, but then refused to do the same to new articles that carried the same details. Essentially, Google had granted the subject’s request for privacy, and then allowed it to be reversed via the back door.

The ICO’s action highlights the attitude of the press, which tries to draw as much attention to stories related to the right to be forgotten and their subjects as possible, generating new coverage that throws up details of the very events those making right to be forgotten requests are seeking to have buried.

There is no expectation of anonymity for people convicted of even minor crimes in the UK, something the press takes advantage of: such as the regional newspaper which tweeted a picture of the woman convicted of shoplifting a sex toy. However, after a criminal conviction is spent, the facts of the crime are deemed “irrelevant information” in the technical sense of the UK Data Protection Act.

The arrival of the right to be forgotten, or more accurately the right to have online search results de-linked, as made explicit by the EU Court of Justice in 2014, does not entail retroactive censorship of newspaper reports from the time of the original event. But the limited cases published by Google so far suggest that such requests have normally been granted, except where there was a strong public interest.

Stirring up a censorship storm

It’s clear Google does not like the right to be forgotten, and it has from early on sent notifications to publishers of de-listed links in the hope they will cry “censorship”. Certainly BBC journalist Robert Peston felt “cast into oblivion” because his blog no longer appeared in search results for one particular commenter’s name.

It’s not clear that such notifications are required at all: the European Court of Justice judgment didn’t call for them, and the publishers are neither subject (as they’re not the person involved) nor controller (Google in this case) of the de-listed link. Experts and even the ICO have hinted that Google’s efforts to publicise the very details it is supposed to be minimising might be viewed as a privacy breach or unfair processing with regard to those making right to be forgotten requests.

The Barry Gibb effect

De-listing notifications achieve something similar to the Streisand effect, where publicity around a request for privacy leads to exactly the opposite result. I’ve previously called the attempt to stir up publisher unrest the Barry Gibb effect, because it goes so well with Streisand. So well, maybe it oughta be illegal.

Some publishers are happy to dance to Google’s tune, accumulating and publishing these notifications in their own lists of de-listed links. Presumably this is intended to be seen as a bold move against censorship – the more accurate “List of things we once published that are now considered to contain irrelevant information about somebody” doesn’t sound as appealing.

In June 2015, even the BBC joined in, and comments still show that readers find salacious value in such a list.

Upholding the spirit and letter of the law

While some reporters laugh at the idea of deleting links to articles about links, this misses the point. The ICO has not previously challenged the reporting of stories relating to the right to be forgotten, or lists of delisted links – even when these appear to subvert the spirit of data protection. But by naming the individual involved in these new reports, the de-listed story is brought straight back to the top of search results for the person in question. This is a much more direct subversion of the spirit of the law.

Google refused the subject’s request that it de-list nine search results repeating the old story, name and all, claiming they were relevant to journalistic reporting of the right to be forgotten. The ICO judgement weighed the arguments carefully over ten pages before finding for the complainant in its resulting enforcement notice.

The ICO dealt with 120 such complaints in the past year, but this appears to be the only one where a Google refusal led to an enforcement notice.

The decision against Google is a significant step. However, its scope is narrow as it concerns stories that unwisely repeat personally identifying information, and again it only leads to de-listing results from searches of a particular name. It remains to be seen whether other more subtle forms of subversion aimed at the right to be forgotten will continue to be tolerated.