Do you have a right to be “forgotten” by Google searches and other internet search engines? That question is being considered in Europe currently, where the European Court of Justice has received advice – which it is likely to follow – that Google does not have to remove personal information from search results. While the court hasn’t yet made a definitive judgement, much of the non-specialist media reporting is treating this advice as the judgement.
The European Court of Justice is currently considering what proponents describe as a “right to be forgotten”. That right involves expressions of human rights under European law. The proposed right would be legally enforceable, and centres on a right for individuals to require search engine operators, such as Google, to suppress particular information about those people.
That suppression relates to search results and to an operator’s cached version of independent web pages or other content. It does not force the search engine operator to expunge sites that are outside the operator’s control. Those sites may well remain online in perpetuity. However, the information from those sites will not be displayed by the search engine.
In practice, the suppression means that offensive information about some individuals will accordingly cease to be readily available and will increasingly be forgotten. You might be able to find it through word of mouth or links in blogs and emails, but it will not appear in the search results of a particular search engine.
Previously, the British Library, the National Library of Australia and the Library of Congress have proudly – and rightly – dubbed themselves as “the memory of the world”. They are repositories of information that might be embarrassing, politically inconvenient, trivial or belatedly recognised as fundamentally important. But their role as memory machines is being challenged by search engines.
Some of those engines, such as Google, are now globally accessible. They cover a vast range of information. They abstract and often cache billions of public and private documents, videos, still images and messages in newsgroups.
The major engines purport to be neutral and beneficent. They operate across jurisdictions, without regard to personal sensitivities, idiosyncrasies or beliefs. They typically disclaim responsibility for search results that display information independently created by government agencies, advocacy groups, newspapers, other businesses and individuals. That disclaimer adopts the same model as connectivity providers.
Australian law provides special protection for telecommunications service operators, Australia Post and courier services. Those entities cannot be reasonably expected to know the details of every communication that passes across their networks. Further, they can’t systematically discriminate between “good” and “bad” information. Your postman, for example, doesn’t open every letter to determine whether it features lies, threats, fantasies or unpleasantness.
People have argued that search engines are different. Those engines collect, store and display information that may be hurtful and defamatory. It may be information that involves youthful indiscretions or other errors of judgement that would otherwise be forgotten.
Search results may provide access to information for a long time and to a global audience, making things difficult to forget. As a liberal democratic society there are times when all of us should be able to move on from our past and not be haunted by mistakes or by what someone said about us.
The act of forgetting is a foundation of Australia’s spent convictions regime: information about youthful offenders is restricted and adults are not required to disclose criminal convictions regarding some offences.
The court in Europe hasn’t yet made a decision. But it is likely to be persuaded by advice that the “right” isn’t required under Europe’s 1995 Data Protection Directive – fundamental for privacy law in the UK, Germany and other jurisdictions.
It is also likely to recognise that the right would be administratively cumbersome. It would conflict with the immunity that connectivity providers enjoy regarding information outside their control.
More importantly, concerns regarding false information and malice might be better addressed through defamation and consumer protection law.
A right to be forgotten online hasn’t yet been established in Australia. It hasn’t been advocated by the national Privacy Commissioner, which remains several years behind its European peers. One reason is that we don’t require retrospective correction or deletion of newspapers, magazines and other print items in libraries.
Local policymakers and businesses will presumably endorse related judicial rejection in Europe. They will consider that our law provides an appropriate balance between the interests of connectivity providers, individuals and search engine users. They will watch with interest efforts to persuade European legislators to provide statutory “memory loss” as part of current updating of the 1995 Directive.
They will continue to face calls by Australian privacy advocates who argue that the internet is fundamentally different to print repositories. Do global search engines require new rules for forgetting and forgiveness?