Paula Todd: The right to be forgotten shouldn’t cost us our free speech

Thursday, July 3, 2014

This article was originally published in the National Post.

By Paula Todd

A man in Spain was forced to auction his house to ​re​pay a debt to taxpayers. A dozen years later, he has just convinced the highest court of the European Union that these details should no longer be available online. Mario Costeja Gonzalez managed to do far more than delete local legal history, though. He’s unleashed a censorship juggernaut that could eventually destroy parts of the Internet and hurtle freedom of expression and access to information back to the digital Dark Ages.

Strong words, but desperately needed to awaken us to the realities of the aggressive European Court of Justice (ECJ) decision. It has both created a preposterous new ​'​Court of Google,​'​ and given it the authority to decide what is more important — a netizen’s right to self-edit online or free expression and the public’s right to know. So far, there are thousands and thousands of European citizens waiting to have their legal rights adjudicated, not by a real court initially but by Google employees. That’s one way of shifting costs. As a Google spokesperson described the massive new undertaking: "This is a new process for us. Each request has to be assessed individually, and we're working as quickly as possible to get through the queue."

The undemocratically appointed Google worships are required by the new decision to enforce a standard for censorship so low, or face a financial threat for non-compliance so high, that netizens should have little difficulty deleting their Internet record and censoring the writing/reporting of others, even as the very material remains in courthouses, government records and newspapers. This decision sends us back to the dusty archives and microfiche libraries so magnificently liberated by the Internet and hyperlinked by the World Wide Web.

What’s especially odd in Gonzalez’s case is he forced Google, the world’s most comprehensive search engine, to expunge a public and legal record, despite that court’s stated reverence for maintaining historic, statistical and scientific records. The jubilant Gonzalez admits he was not defamed, harassed or sexually exploited on the Internet. He was a victim of no one but himself. If his official legal history can be deleted from the Internet, pretty much anything else can, too.

Now, all Europeans must do is allege information posted online is inadequate (the very nature of collaborative Wikipedia and cumulative history itself), irrelevant or no longer relevant (to whom? when? why?), or “excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine.” Unravelling that tangled web would take scholarly judges a serious chunk of time. How well prepared are Google mods and geeks to decide? More seriously, what justification can any court offer for handing over to private corporations the delicate job of balancing constitutionally enshrined freedom of information and expression rights with someone’s desire to go from being Internet Famous to Internet Forgotten? The explosion of companies now selling related “privacy rights” is well underway.

Yes, the court included an exception for “the public interest,” but narrowly defined it as “the role played by the data subject in public life,” while ignoring the critical role public institutions play in the human record. Does a heart surgeon nailed by a negligence class action suit a dozen years to disappear? Or those small-town politicians who supported the Ku Klux Klan in the past? The former child abuser whose records will no longer be available when he applies to work in a daycare? Oops.

Are we in Canada and other democratic nations likely to be saddled with this loosey-goosey approach to balancing privacy against free expression? Opinion is divided. The Supreme Court of Canada has shown more digital dexterity than the ECJ, ruling in 2011, for instance, that people who merely link to defamatory material don’t become publishers of it. The same might be said of search engines that rifle the Web for more comprehensive material than we'd ever find plucking at threads.

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.

Of course, the Internet appeared on our computer screens with no manual, and there is much we’d all like to erase willy nilly. That’s precisely what Google will do in Europe now — present but a hodgepodge of the human record, redacted without sufficient or transparent cause. And the likely outcome? The diminished ‘censorship engines’ will simply send netizens via proxy servers to do their homework in other countries, where the past is still public.

Paula Todd is a digital media professor, lawyer and Random House author. Her latest book, Extreme Mean: Trolls, Bullies and Predators Online, exposes the surprising motives of cyberabusers, including adults, and solutions to their machinations. She sits on the Board of Canadian Journalists for Free Expression and chairs its Digital Issues Committee.