It’s obscurity, not apocalypse: All that the “right to be forgotten” decision has created is the right to ask to have information removed from search engine results.
/The National Post recently carried a week of op-eds, all focused on responding to the “right to be forgotten” that was (allegedly) created by the Google Spain decision. Some extremely well-known and widely-respected experts have weighed in on the subject:
Ann Cavoukian and Chris Wolfe:
…while personal control is essential to privacy, empowering individuals to demand the removal of links to unflattering, but accurate, information arguably goes far beyond protecting privacy… The recent extreme application of privacy rights in such a vague, shotgun manner threatens free expression on the Internet. We cannot allow the right to privacy to be converted into the right to censor.
This ruling threatens to change the Internet from a neutral platform, on which all the knowledge of humanity might eventually be made available, to a highly censored network, in which, every seven seconds, another person may unilaterally decide that they have a right to be forgotten and to have the record of their past suppressed…We have a duty to remember, not to forget; a duty not to let the past go, simply because it is inconvenient or embarrassing.
Should there be exceptions to the principle of “let the public record stand”? Most countries already have laws that do just that — prohibiting and ordering the deletion of online criminal defamation, cyberabuse and images of child sexual abuse, for example. Google, and other search engines, do invent algorithms that position certain results more prominently. Surely a discussion about tweaking those algorithms would have been less draconian than this cyber censorship.
With all due respect to these experts, I cannot help but feel that each of them has missed the central point – pushed by the rhetoric about a “right to be forgotten” into responding to a hypothetical idea rather than the concrete reality of the decision.
It is not about mere reputation grooming.
It is not about suppressing or rewriting history.
It is not about silencing critics.
It is not about scrubbing clean the public record.
It is not about protecting people from the consequences of their actions.
Frankly, this ruling isn’t the creation of a new form of censorship or suppression – rather, it’s a return to what used to be. The decision sets the stage for aligning new communications media with more traditional lifespans of information and a restoration of the eventual drawing of a curtain of obscurity over information as its timeliness fades.
Facing the facts:
It is important to be clear that all the “right to be forgotten” decision has created is the right to ask to have information removed from search engine results.
There is no guarantee that the information will be removed – in its decision the court recognized that while indeed there are situations where removal would be appropriate, each request requires a careful balancing of individual rights of informational self-determination against the public interest.
It is also worth pointing out that this is hardly the only recourse users have to protect and shape online privacy, identity, and reputation. In an Atlantic article about the introduction of Facebook Social Graph, the authors comment that:
Online, obscurity is created through a combination of factors. Being invisible to search engines increases obscurity. So does using privacy settings and pseudonyms. Disclosing information in coded ways that only a limited audience will grasp enhances obscurity, too. Since few online disclosures are truly confidential or highly publicized, the lion's share of communication on the social web falls along the expansive continuum of obscurity: a range that runs from completely hidden to totally obvious.
Other ubiquitous privacy protective techniques don’t tend to engender the same concerns as “right to be forgotten”. Nobody is ringing alarm bells equating privacy settings with censorship – indeed, we encourage the use of privacy settings as responsible online behavior. And while there are certainly concerns about the use of pseudonyms, those concerns are focused on accountability, not freedom of speech or access to information. In fact, the use of pseudonyms is widely considered as facilitating freedom of speech, not preventing it.
Bottom line:
I’m all for freedom of expression. Not a fan of censorship either. So I would like to make a heartfelt plea to the community of thinkers who focus on this area of emerging law, policy, and culture: exaggerations and overreactions don’t help clarify these issues and are potentially damaging in the long run. A clear understanding of what this decision is —and what it is not— will be the best first step towards effective, balanced implementation.
