The right to remember, damnit

A reporter asked me for reaction to news that Google has put up a form to meet a European court’s insane and dangerous ruling and allow people to demand that links to content they don’t like about themselves be taken down. Here’s what I said:

This is a most troubling event for speech, the web, and Europe.

The court has trampled the free-speech rights not only of Google but of the sites — and speakers — to which it links.

The court has undertaken to control knowledge — to erase what is already known — which in concept is offensive to an open and modern society and in history is a device used by tyrannies; one would have hoped that European jurists of all people would have recognized the danger of that precedent.

The court has undermined the very structure of Sir Tim Berners-Lee’s invention, the link — the underpinning of the web itself — by making now Google (and next perhaps any of us) liable just for linking to information. Will newspapers be forced to erase what they link to or quote? Will libraries be forced to take metaphoric cards out of their catalogs?

The court has, ironically, made Google only more powerful, making it the adjudicator of what information should and should not be found. The court has also given Google ludicrous parameters — e.g., having to decide what is relevant to what; relevant to whom; relevant in what context?

We don’t know how this order will be implemented by the various search engines. One question is what right of notice and appeal a delinked site will have.

If this process is public, as it should be, then doesn’t that have the potential to bring even more attention to the information in dispute? Another question is whether content will be made invisible in Europe but will still be visible — as I hope it will be — in the rest of the world, where the European court has no authority. Will this then allow others to compare search results and make the banned information only more visible? In the end, has the court assured a Streisand effect — or, as the comedian John Oliver said on his HBO show, the one thing that is known about the Spaniard who brought this case is the thing that he does not want known.

Further, what of search engines and sites that have no European offices and thus the court has no authority over them? If they refuse to delink on demand will the court ban these sites for European view?

Finally, I am concerned about the additive effect of this ruling on Europe’s reputation as technophobic or anti-American. Add to this especially various actions in Germany — government officials demanding a “Verpixelungsrecht” (a right to be pixelated) in Google Street View despite the fact that these are images taken of public views in public places; German publishers ganging up on Google to strongarm politicians into passing a law limiting the quoting of snippets of content and now threatening to break up Google — in addition to similarly head-scratching moves in France, Italy, and elsewhere. Is Europe a place where any technology company or investor will choose to work?

You ask about Eric Schmidt and David Drummond cochairing the advisory committee. That is a clear indication of how profound and dangerous this situation is in Google’s view. It so happens I was in Mountain View two weeks ago speaking to the all-hands meeting of Google’s privacy teams and I can tell you they were shocked at the ruling. I also said much of what I’ve said to you there. I am appalled by this ruling. [As a matter of disclosure, Google paid my travel expenses but I have no business relationship with Google.]

  • Christopher Squire
  • Christopher Squire

    C4 News last night said that Google would only censor searches done via its European portals, so that the workaround is to use instead of etc. I haven’t any way of testing this at present.

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  • reeija

    Well, people in Europe are starting to hint of EUs stupid actions in regards to this right to be forgotten. Let’s not forget that usually bad politicians, rapists, killers and so on ask for th elinks to be removed –

  • C4 News last night said that Google would only censor searches done via its European portals, so that the workaround is to use

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  • The Center for a Stateless Society’s Thomas Knapp casts this in the form of an “Intellectual Property” problem.:

    In this specific case, the claim seems to be less one of privacy and more one of “intellectual property.” Gonzales doesn’t claim that Google peeked through his window and saw him writing down notice of that 1998 auction. He acknowledges that it was, at the time, a publicly reported event. He’s just claiming that now, 16 years later, he “owns” knowledge of that event and is entitled to control it, while Google doesn’t and isn’t.

    Full article at

  • kgherman

    Professor Jarvis, please don’t worry about us Europeans and our freedom of speech. Also, I’m very surprised that a University Professor would try to portray Google, a publicly traded company and not some NGO, as a company concerned with the well being of Europe and of its citizens. I don’t deny/doubt that Google has also several programs around the world concerned with such issues but let’s not fool ourselves: if Google is concerned about this ruling is because of its impact on their operations and on their costs (potential future law suites included). The issue at hand is, in my opinion, pretty clear: there are certain rules and laws in the EU that US companies and US citizens find strange or even wrong. However, it is us Europeans who decide them and we do not force anyone outside the EU to follow them. Clearly, if somebody wants to live or operate in the EU it has to follow our laws, regardless how strange they might find them. Simple as that. I’m pretty sure that the very same approach goes for EU citizens living, and EU companies operating, in the US. On top of that, we should not forget the rather poor record of Google in following EU courts rulings and EU laws. Bottom line, we could summarize this entire issue with a simple sentence: Google, a publicly traded company (not a charity) is unhappy with EU ruling and is concerned with its impact on its operations. Everything else, is, IMHO, fired air.

  • I’m a European (British) and I agree with kgerhman that US companies and people should follow European laws when living and operating in European nations. The same is of course true vice-versa, but I believe this misses the point of the discussion completely. The crux of the matter, as far as I can tell, is whether the proposed rule is sensible at all and in my opinion it most certainly is not.

    As others have pointed out, Google are not owners of the data they are revealing in searches, they are merely indexing it and presenting it when search criteria match. Therefor it should not fall to Google to make this data invisible at anyones request, that should be the originator and publisher. The problem with the approach offered is two fold. Firstly it will never be a complete solution. Anyone wishing to circumvent these filters, who are the same people who will be more likely to use the information to their own ends, will simply use the international site. The data will still be presented and the expensive process of removing the indexes in the EU will have been for nothing. The second is the presumption that “Google Knows Best”. For a community that seems to have inherent distrust is large corporates, particularly of the US flavour, this ruling seems to be handing them an awful lot of power.

    Whilst I disagree with the ruling that Google should be responsible for this data I do support the fact that there is an issue to be solved. I have listened to Jeff’s point of view on censoring knowledge and agree this is a very bad thing, but there is an underlying problem,. The original data was presented in a context that was evident and easily discoverable at the time. Also in a context that was appropriate for the time. Different views were politically accepted previously whereas now we see them for inappropriate, particularly around gender, sexuality and race. However, having those view remain but without preserving the context in which they first presented can be misleading. Let us not forget how new the internet actually is and whereas now we are vary careful when presenting views, understanding the permanency of the internet and social networks, this would never have occurred to someone even 20 years ago. They effectively were unable to defend a position they did not know would exist.

    So the question should be how we preserve the knowledge of the past, along with its context and present it in a manner in which the subject is not unfairly represented. This approach would actually mean that the EU’s approach to solving this issue was a step in the opposite direction. It allows those who feel harmed to remove context from others. It could only lead to an avalanche of requests (this appears to be the case) of requests spurred on by the removal of context and opposition for arguments or points of view.

    As an example lets look at a crime and victim. The criminal caused financial harm to the victim 10 years ago and the victim responded by writing a letter in the press highlighting the issue and attacking the criminal. A subsequent court case where the criminal was convicted was reported in the same press. Fast forward 10 years and the criminal complains to the EU and has the conviction report removed from indexes so it can no longer be found. However, the scathing letter from the victim is still discoverable painting an unfavourable view of the victim who apparently has no justification for the outrage. Facts are long forgotten and only Google’s results will be used for context. Does the victim no need to remove their own statement no matter how true and valid, because they have had the supporting context lost?

    I think this is a dangerous path for truth as context is everything. We can defend against it today by maintaining our own links to sources and events and providing references that support the position wherever possible. Thats the power of the internet and hyper-linking. The very think Google was founded on. Condemning historical information that provides context to other data that existed at the time, to the dustbin of obscurity will only muddy waters and cause far more confusion and offence than leaving it alone ever could.

    So rather than simply state that the law exists and Google should just obey (which from what I can tell, they are) perhaps we could discuss how to approach this whilst maintaining the integrity of linked references and data when expunging only selected pieces. Who becomes the editor of history? I don’t think that should be Google’s call or that of an individual.

  • Gianfranco Leggio

    Dear Professor, I do not
    think that you really read the “Google case”. In principle, the rights
    protected by Articles 7 and 8 of the Charter of Fundamental Rights of the
    European Union prevail both on the interest of the search engine and on the
    public interest to find the information. These rights are: “Respect for privacy
    and family life” and “Protection of personal data”. The Court did not trample
    the free-speech rights of Google or of the sites — and speakers — to which it
    links, which are expressly protected by Article 9 of Directive EC 95/46. Even in
    “Google case” there was not an order to cancel news published originally on internet,
    the Court’s judgment is very clear on this point. The Court says that it is
    possible to order to a search engine to remove the links relating to particular
    news when they are not correct, when they are not upgraded, when they has been
    stored for too many years, of course it is always necessary to verify every
    case, and this is the reason why the Court was established. In any case, the
    Court did not say that is always possible to order to remove the links.
    Sometimes it is necessary to remove some links that violate fundamental rights like the “Respect for privacy and family life”. An example is given by “Google case”, a person has the right to order to remove the links concerning his credit recovery procedure
    of 12 yearso ago, because the debtor paid his debt and it is not correct that
    Google or other people profile him with so old information.
    I think that Google is an example of the democratic diffusion of information, but this does not mean that we do not need rules. Concerning your fear about
    search engines and sites that have no European offices and the problem of
    authority over them, I am very surpised of you, you shoud not ask the Court but
    the governments all over the world. I remember you that the Court does not make laws but applies them.
    In any case, If I want to run a business in USA I must respect American laws, why if Google opens a branch in Europe it will not have to respect European legislation?

  • stillpickinganame

    You know, Google as a search engine isn’t anything more than…. a search engine. They’re not trying to communicate anything with the search results they display. The results might be biased but that is simply with the motive of trying to earn some money through it. What’s the EU’s problem?
    Besides, taking stuff down, isn’t that just defeating the whole purpose?
    I’ve read Mr. Jarvis’ book, WWGD? and when Google considers itself in the business of organizing knowledge with their search engine, why add more entropy to it?

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