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The fifth and sixth public meetings of Google’s advisory council met in Berlin and London recently, inviting experts and the public to discuss the outcome of the recent “right to be forgotten ruling” made by the European court of Justice. Adviser Luciano Floridi explains the consultations.
One of the crucial questions of our age is who may legitimately exercise what power over which kind of information.
This is also one of the thorny issues raised by the ruling of the European court of justice (ECJ) against Google on the so-called “right to be forgotten”. And this is why the advisory council spent quite some time addressing it during two public consultations in Berlin and London.
The question is complicated because one may interpret “who”, “what power” and “which information” in many ways and end up talking at cross-purposes.
During the consultations it became clear that there are seven entities that may be legitimately involved: the person to whom the information refers (eg Mario Costeja González); the publisher of the information (eg the Spanish newspaper La Vanguardia); a search engine (eg Google Spain); search engine users (the public); a national Data Protection Agency (DPA, eg the Agencia Española de Protección de Datos); a national court of justice (eg the Audiencia Nacional); and finally, the ECJ.
In terms of power, the last three are legal entities that do not generate the personal information or its links (the two relevant types of information under discussion) but can determine how the other entities manage both.
The public is the only entity in the list that has no direct power in generating or controlling the personal information in question or the links provided by a search engine.
However, the public exercises a decisive “passive power”, insofar as the debate must refer to the “public interest”, or rather a lack thereof, in order to determine whether the personal information in question and its links should remain available.
In order words, the public is the reason why we are having a debate at all.
The mess concerns the first three entities. Sometimes a person has both creative and controlling power with regard to the personal information that he or she wishes to see de-linked. One may have generated the information and made it public.
For example, according to Google’s Transparency Report, the highest number of URLs removed from search results (3431) concern Facebook. In this case, it seems reasonable to expect the person to seek the removal of the personal information itself first, before asking to see it de-linked.
The search engine has no creative power with respect to the personal information it indexes, but it has both creative and controlling power over its links. Such power could be exercised more imaginatively, but the ruling dictates that the links have to be removed, not, for example, push to a lower ranking, ranked historically, or annotated.
This is a pity because more could be done, in terms of sedimentation of information, if the search engines were free to find alternative solutions to mere de-linking of legally available information, for example an old ASBO now irrelevant.
A publisher, such as the Guardian or the BBC, is the most powerful of all seven entities involved, because it has both creative and controlling power over the personal information in question.
A publisher can regulate or block access to personal information quite easily. Its intervention makes any gerrymandered de-linking no longer a problem. And it can operate discretely, without creating any Streisand effect.
However, at the moment, publishers are disempowered. They are merely notified about links removed, and even this is under discussion. They have no clear right of appeal, although they can informally negotiate a re-linking with a search engine, as it has happen with the Guardian and the BBC.
All this is unsatisfactory and in need of rectification.
At the end of the London meeting, I became convinced that a sensible procedure would be for an individual to request first the publisher to remove the personal information in question.
Failing that, one could ask the search engine to de-link it.
If that does not work, an appeal to the national DPA or the relevant court in one’s country would be the next step.
And if that does not work, one could appeal to the ECJ. At each stage, the fact that the previous request was rejected should be documented and make a difference.
In short, publishers should be the first to be consulted, not search engines, and their evaluation should matter.
• Luciano Floridi is director of research, and professor of philosophy and ethics of information, at the Oxford Internet Institute, University of Oxford. He is a member of Google Advisory Council on the Right to be Forgotten. His last book is The Fourth Revolution: How the Infosphere is Reshaping Human Reality (Oxford University Press, 2014).
