When Mario Costa Gonzalez sued the Spanish Data Protection Agency and Google in 2010 in a case that would become known as “the right to be forgotten” I wonder if he could conceive that , four years on, the matter would be so hotly debated and so many questions raised. The ruling rendered by the European Court of Justice (ECJ) in May 2014 wasn’t the end of the legal battle it seems as people from all sides have lined-up since to express opinions and query the decision. Herein are expressed the thoughts of a member of Google’s advisory board, Luciano Floridi.
In the article, which appeared in the Guardian, Floridi addresses some of the confusion and looks at the grey area of the ruling. He asks how we can ensure that the right kind of personal information be remembered without constantly being recalled. In other words, given the nature of how information is cataloged on the Internet (information is always being added, amended and updated), how do we prevent removed information from resurfacing?
Another vexing question addresses the fact that removal of information from one search engine doesn’t mean it can’t be gleaned from one of the other search engines – a click away but maybe, geographically a world away from Europe? How can we reconcile geographical reference (Europe) with the universality of the Internet?
Also up for consideration is the language of the European Convention on Human Rights and the Declaration on Human Rights. They simultaneously espouse the “right to be forgotten” as well as the “right to information.” How can such a conflict be resolved?
The next question relates to the notion of public interest and its right to know. According to the European Court of Justice’ decree, information is not to be deleted if it matters to the public. But when is information of “public interest” exactly. And, in that vein, comes the idea of what is a public figure. In today’s instant information world, anyone and everyone can be a public figure, if only momentarily.
How much exposure does one need to be considered a public figure? And what criteria do you use to determine whether one’s degree of notoriety argues against removal of information about that individual? Then the question of relevance arises. First off, who determines what is relevant anyway? And can something once relevant become irrelevant?
How about the words “data processing?” This concept encompasses anything to do with or to data. But it fails to distinguish among recording, copying formatting, retrieving , transmitting, linking and manipulating data. Should the term “data processing” be redefined or at least clarified?
A gnawing question which must have been on the minds of the ECJ jurists concerns the perception of the term “gatekeeper”. Who should be the ultimate decision-maker? Under the weight of the ruling, search engines are charged with making the decisions on and the ultimate removal of information. Is this wise? Is it even feasible or workable given the mountains of information out there? Should government be involved?
Another difficult puzzler is whether the entire process should be done automatically in a programmed way or by humans in a kind of review board. Can we trust machines, algorithms with the task?
So many questions have been raised. Surely many more could have and probably were asked in the seven months that the advisory council deliberated. As the report is imminent, perhaps we will wait for its release before commenting further.