Courts tripped up by ignorance of technology

Question of the week: Do we have the right to be forgotten, as the European Court of Justice has just ruled?

Sat, May 17, 2014, 01:00

The right to life, liberty and security are just some of the inviolable rights we hold to be sacred and universal. And thanks to the European Court of Justice, we can now add an entirely new right – the right to be forgotten.

It is a hugely consequential judgment, and arose when a Spanish doctor, Mario Costeja Gonzalez, took on Google over the links it returned for his name. Among the results was a tiny story in La Vanguardia relating to the sale of a property he owned after he ran into financial difficulties – back in 1998. In a groundbreaking decision, the court ruled that search engines must remove results deemed “inadequate, irrelevant or no longer relevant”.

There is a certain elegance to the notion that our image in the public perception is something we have control over, and a right to maintain control over. And it is in keeping with an admirably hardline attitude to privacy established by European authorities – following a data-protection decision last month, it reinforces the sense that our online rights are being protected at a time when the very concept of privacy is coming under serious pressure in the digital age.

That said, there are a lot of peculiar elements arising from the decision. Above all, the European Court of Justice is setting a puzzling precedent in determining that the paper’s archive can still contain the story about the doctor’s debt problems, while Google can’t link to it. While Google’s power is so great that it demands thorough regulatory oversight, this decision is effectively striking a blow at the very notion of a comprehensive online index.

That precedent is all the more puzzling because Costeja Gonzalez’s particular issue, his debt and the forced sale of his property was, by any measure, a matter of public record. This wasn’t, by any stretch, a private matter that crept online, as often happens. If the case involved a factual but completely private issue, the ruling would be a lot more welcome.

Already, Google has been inundated with requests to remove links to material people would rather was not so easily accessible. But on what grounds can matters of public record be subsequently considered a matter to be forgotten? Is the yardstick one of personal embarrassment?

The ruling comes at a critical juncture – across the world, courts and regulators are grappling with completely new issues arising out of technology, and the jurisprudence established now will have far- reaching implications. But it is clear that in many cases, those responsible for making these decisions are ill-equipped for the task. A Reuters report on a US case involving online TV start-up Aereo summarised the conundrum: “One US Supreme Court justice referred to Netflix as “Netflick”. Another seemed not to know that HBO is a cable channel. A third appeared to think most software coding could be tossed off in a mere weekend.”

The pattern repeats itself across patent law, copyright cases and issues of surveillance. The scale of digital disruption is so great that inevitably there will be a protracted period of adjustment, in the legal field and in wider society. However, given the importance of the precedents being set, the capacity of those making the decisions to understand the full consequences of their actions must not be in any doubt.