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Last week, the Guardian's James Ball wrote an impassioned critique of 'right to be forgotten', the European Court of Justice ruling that makes it possible for some links to third-party content to be removed from search results through an appeals process.
It's censorship, said Ball, after the first wave of notifications informing the outlet that Google had removed links to some online content. This was likely the beginning, he warned, as the "rich and powerful look to scrub up their online images." Ball acknowledged that there "might be a case" for people who "…long since reformed and cleaned up their act" – but said that was an editorial call, not Google's.
These are interesting arguments – but they may not be only the way to frame or appreciate the right to be forgotten.
Do you believe in freedom of the press? Of course you do. I do too. But Google is not a media outlet – it has no journalists to speak of, no traditional editors, no real process for correcting the record. It merely surfaces what its algorithm – a machine – believes to be the most relevant content for your search. The ruling also does not eliminate the content itself so people can still find stories simply by searching on an outlet's website. I see legwork that's now needed, not censorship's heavy hand.
Do you abhor the idea of the famous looking to obscure misdeeds? Of course you do. No one likes gamesmanship. An unfair playing field sets our teeth on edge. But the fact of the matter is that the EU ruling left a massive and welcome exception for content that's in the public interest. Google should be taking broad latitude to ensure that more, not less, content that may be in the public interest stays in public view. If the search engine – a very unwilling party to the ruling – is not taking full advantage to err on the side of the collective good, it's worth asking if perhaps a passive protest is at play.
After all, for every one Stan O'Neal or Dougie McDonald – outliers well within the public interest – there are thousands of average people whose stories are inconsequential to society but very important to their individual personal and professional lives. It's your sister whose ex has posted a terrible and humiliating blog post. It's when a disgruntled employee slams your dentist online or everyone references an outdated article with a unflattering photograph you find embarrassing.
Do you believe that it is an editorial call to remove certain stories like these? Ball suggests that the right to remove belongs with publishers like the Guardian, not Google. I see the appeal to this line of thinking – but the fact remains, news outlets have not generally made the time or effort to consider or implement this in any broad, meaningful way. We also need to remember that Google isn't removing the content from the publisher's site, only from its search results. And even if media outlets were to do so, it would be extraordinarily difficult for them to banish original pieces from search results given the way Google and other search engines surface content to give it prominence. No, search engines are the appropriate and effective source to enact the ruling's intent.
I'm a staunch proponent and an advocate for 'right to be forgotten.' I've said so before and it bears repeating: this is a first and significant step for restoring and safeguarding online dignity. And I'm heartened by the many thoughtful pieces I have seen over the past 10 days as Google begins its process in earnest. We've seen moderated, nuanced critiques (here and here) and many have offered good points – suggesting as Ball does, for example, an appeals process for Google to reconsider removal or asking for greater transparency to understand why a particular piece of content was de-indexed.
As with any new and massive regulation, the implementation was bound to be difficult in the beginning. There will be fits and starts. The European Court of Justice decision was a boundary of words, creating a border of beginnings and ends. Now, we've clearly moved into a more difficult and taxing stage – giving practical shape and meaning to the legal landscape bounded by those constraints. But that too will pass in the eventuality of time – just as we've seen with copyright and other laws that required online application.
In the interim, let's advocate for smart and sensible interpretations that help Google and relevant EU data protection authorities adhere to the decision's spirit: making it possible for the Jack or Jane in your neighbourhood to be defined by more than just outdated, misleading or inaccurate search results.
Michael Fertik is the CEO and founder of Reputation.com
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