Right To Be Forgotten. Where Are We Up To?
Back in pre-history before the Internet, or at least, before computers arrived on every desk and in every phone, there were Newspapers. Up to, say, 1995.
And since they first began, Newspapers, and Local Newspapers in particular, suffered from a lack of actual interesting local News.
[They still do, judging by today’s edition of the Leicester Mercury. A man has been fined today for stealing two bottles of brandy from the Co-Op. Read all about it! link here]
So in default of interesting news, the papers used to send either a keen apprentice, or a world-weary hack, to sit all day in the Magistrates Courts and write it all down. I should admit, that when I first qualified as a Solicitor and began appearing in the Magistrates Courts myself, I used to get a kick out of reading this sort of report with my name as the Defending Solicitor. Me, in print!
So, OK, a man gets fined £150 and is made to pay for the brandy. Now today the thing is, it’s not 1995 anymore, and his name is in the Internet.
In those “Old Days”, his name and that day’s edition of the Mercury would have vanished from everyone’s memory well before his criminal conviction became “spent”.
The purpose of the Rehabilitation of Offenders Act 1974 [as amended in 2014 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012] links here and here is revealed in its name. If the idea of punishing a crime is to chastise, it is also hoped that a lesson can be learned and that the Offender will reach a decision to change behaviour.
To that end, it is counterproductive to require such a person to reveal his Criminal record when he goes for his next job interview. The rules as to what must be disclosed, and what need not, are set out in the two Acts of Parliament. So whilst an offence of a sexual nature may have to be disclosed in a job application to work with children, the general position is that minor brushes with the law in a person’s youth should not thereafter blight their chances of ever getting a decent job or having a career.
Is there any employer, who does not Google the name of a job applicant before even seeing them at interview? And, if they see the heinous crime of shoplifting twenty years ago, maybe there will be no job interview. And Google has no policy of Rehabilitation of Offenders. If it’s in the Leicester Mercury in 2015, then it’s there for ever on the Internet.
And if it is there on the Internet, Google will find it.
Because of this, there has grown up the concept of the “Right to Be Forgotten” [RTBF].
What it means I think is, the Right Not To Be Googled.
I mean by that, that the Leicester Mercury is what it is. Yesterday’s paper cannot change. If it carries an article in 2015, then the article will still be there if you read the paper in 200 years time. No-one is suggesting that social historians, wanting to read an old newspaper, should be denied the ability to do so because the records of it on the Internet have been censored and changed.
Rather, the RTBF means the right to require of Google that its links to the article should be amended. So that when anyone googles “Fred Bloggs” in order to find out about Fred, there is no link to the newspaper article about him stealing a bicycle in 1996, even though the newspaper article is still on the Internet and always will be.
And on this interpretation the Courts of European Countries have in the main supported the concept of a RTBF. After the first Court Orders, there has been quite a flood of them, over a quarter of a million and the Internet is full of instances. In each case, Google has been involved. It is far and away the largest search engine; many people have not even heard of the others.
Google in Europe may be an Irish Company but it is of course entirely American-created and certainly its background and ethos is American.
If we in Europe have a gut feeling that, by and large, people have a right to privacy then perhaps in USA the gut feeling is, that people have a right to information.
So that a head-on crash was always likely, because the world can’t have privacy if information must be public.
Nevertheless Google has been willing in the main to concede to private applicants and Court Orders to remove links when the subject matter, in its or the Court’s opinion, is “inadequate, irrelevant , no longer relevant or excessive and not in the public interest”
But, it has done so in an interesting way. If the Court Order is French, Google removes the link from searches conducted by Google.fr. If English, it removes links from Google.co.uk.
So the canny user of the internet has quickly learnt to use google.com to make its searches, because by and large, search links are not being removed from the American search engine
It may be that matters are coming to a head.
Earlier this year the Courts in France required Google France to “ensure” that the USA Google should de-list all links which had been removed from Google France. And, threatening to fine Google France a lot of money if it failed to achieve this – ignoring the fact that Google France has no power to order Google USA to do anything. It is the tail,, not the Dog.
What this means is that the Courts of France are taking the view that they are the Courts of all the World. They demand, that if you cannot find a Google link in France, then you must not be able to find it in San Francisco.
So where’s this going? It is a criminal offence to insult the King of Thailand, if you are in Thailand. The Thai Courts will certainly want Google to remove links to Republican pages in Thailand. The Russian Courts will want any reference to Gay sites removed from all Google Links.
The link is here [and scroll to July 30th] to a Blog from Peter Fleischer who is the Chief Lawyer for Google. He says very reasonably, that if each Court in the World can decide what can be revealed by a Google search, then the Internet will become as free only as the World’s least free place.Not much of an Internet, then. He says that no single Country has, or should have, the authority to control what can be accessed by the people of a different Country.
Ever since it began, the Internet has carried the label of being “without frontiers”. To the extent that the Internet and Google are pretty much the same thing, where can we go from here?
Answers on a postcard please.
In the meantime, if you need Notary Services in Leeds here we are. Please do contact me or Louise whenever we can assist. As ever, its firstname.lastname@example.org and email@example.com and phone us on 0113 816 0116