30 Jul 14 | Europe and Central Asia, European Union, News and features, United Kingdom
The British House of Lords has slammed the recent “right to be forgotten” ruling by the court of justice of the European Union, deeming it “unworkable” and “wrong in principle”.
The Lords’ Home Affairs, Health and Education EU Sub-Committee stated in a report on the ruling, published Wednesday, that: “It ignores the effect on smaller search engines which, unlike Google, may not have the resources to consider individually large numbers of requests for the deletion of links.”
The committee added that: “It is wrong in principle to leave to search engines the task of deciding many thousands of individual cases against criteria as vague as ‘particular reasons, such as the role played by the data subject in public life’. We emphasise again the likelihood that different search engines would come to different and conflicting conclusions on a request for deletion of links.”
The ruling from May this year forces search engines, like Google, to remove links to articles found to be outdated or irrelevant at the request of individuals, even if the information in them is true and factual and without the original source material being altered. Following this, Google introduced a removal form which received some 70,000 requests within two months.
The Lords committee recommends, among other things, that the “government should persevere in their stated intention of ensuring that the Regulation no longer includes any provision on the lines of the Commission’s ‘right to be forgotten'”.
Index on Censorship has repeatedly spoken out against the ruling, stating that it “violates the fundamental principles of freedom of expression“, is “a retrograde move that misunderstands the role and responsibility of search engines and the wider internet” and “a blunt instrument ruling that opens the door for widespread censorship and the whitewashing of the past”.
This article was posted on July 30, 2014 at indexoncensorship.org
02 Jun 14 | Digital Freedom, European Union, News and features
On May 13, the Court of Justice of the European Union (CJEU) held in Google Spain v AEPD and Mario Costeja González that there was a “right to be forgotten” in the context of data processing on internet search engines. The case had been brought by a Spanish man, Mario Gonzáles, after his failure to remove an auction notice of his repossessed home from 1998, available on La Vanguardia, a widely-read newspaper website in Catalonia.
The CJEU considered the application of various sections of Article 14 of EU Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 covering the processing of personal data and the free movement of such data.
A very specific philosophy underlines the directive. For one, it is the belief that data systems are human productions, created by humans for humans. In the preamble to Article 1 of Directive 95/46, “data processing systems are designed to serve man; … they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms notably the right to privacy, and contribute to … the well-being of individuals.”
Google Spain and Google Inc.’s argument was that such search engines “cannot be regarded as processing the data which appear on third parties’ web pages displayed in the list of search results”. The information is processed without “effecting the selection between personal data and other information.” Gonzáles, and several governments, disagreed, arguing that the search engine was the “controller” regarding data processing. The Court accepted the argument.
Attempts to distinguish the entities (Google Inc. and Google Spain) also failed. Google Inc. might well have operated in a third state, but Google Spain operated in a Member State. To exonerate the former would render Directive 95/46 toothless.
The other side of the coin, and one Google is wanting to stress, is that such a ruling is a gift to the forces of oppression. A statement from a Google spokesman noted how, “The court’s ruling requires Google to make difficult judgments about an individual’s right to be forgotten and the public’s right to know.”
Google’s Larry Page seemingly confuses the necessity of privacy with the transparency (or opacity) of power. “It will be used by other governments that aren’t as forward and progressive as Europe to do bad things. Other people are going to pile on, probably… for reasons most Europeans would find negative.” Such a view ignores that individuals, not governments, have the right to be forgotten. His pertinent point lies in how that right might well be interpreted, be it by companies or supervisory authorities. That remains the vast fly in the ointment.
Despite his evident frustrations, Page admitted that Google had misread the EU smoke signals, having been less involved in matters of privacy, and more committed to a near dogmatic stance on total, uninhibited transparency. “That’s one of the things we’ve taken from this, that we’re starting the process of really going an talking to people.”
A sense of proportion is needed here. The impetus on the part of powerful agencies or entities to make data available is greater in the name of transparency than private individuals who prefer to leave few traces to inquisitive searchers. Much of this lies in the entrusting of power – those who hold it should be visible; those who have none are entitled to be invisible. This invariably comes with its implications for the information-hungry generation that Google has tapped into.
The critics, including those charged with advising Google on how best to implement the EU Court ruling, have worries about the routes of accessibility. Information ethics theorist Luciano Floridi, one such specially charged advisor, argues that the decision spells the end of freely available information. The decision “raised the bar so high that the old rules of Internet no longer apply.”
For Floridi, the EU Court ruling might actually allow companies to determine the nature of what is accessible. “People would be screaming if a powerful company suddenly decided what information could be seen by what people, when and where.” Private companies, in other words, had to be the judges of the public interest, an unduly broad vesting of power. The result, for Floridi, will be a proliferation of “reputation management companies” engaged in targeting compromising information.
Specialist on data law, Christopher Kuner, suggests that the Court has shown a lack of concern for the territorial application, and implications, of the judgment. It “fails to take into account the global nature of the internet.” Wikipedia’s founder, Jimmy Wales, also on Google’s advisory board, has fears that Wikipedia articles are set for the censor’s modifying chop. “When will a European court demand that Wikipedia censor an article with truthful information because an individual doesn’t like it?”
The Court was by no means oblivious to these concerns. A “fair balance should be sought in particular between that interest [in having access to information] and the data subject’s fundamental rights under Articles 7 [covering no punishment without law] and 8 [covering privacy] of the Charter.” Whether there could be a justifiable infringement of the data subject’s right to private information would depend on the public interest in accessing that information, and “the role played by the data subject in private life.”
To that end, Google’s service of removal is only available to European citizens. Its completeness remains to be tested. Applicants are entitled to seek removal for such grounds as material that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.”
An explanation must accompany the application, including digital copies of photo identification, indicating that ever delicate dance between free access and anonymity. For Google, as if it were an unusual illness, one has to justify the assertion of anonymity and invisibility on the world’s most powerful search engine.
Others have showed far more enthusiasm. Google’s implemented program received 12,000 submissions in its first day, with about 1,500 coming from the UK alone. Floridi may well be right – the age of open access is over. The question on who limits that access to information in the context of a search, and what it produces, continues to loom large. The right to know jousts with the entitlement to be invisible.
This article was published on June 2, 2014 at indexoncensorship.org
Both Google and the European Union are funders of Index on Censorship
30 May 14 | About Index, Campaigns
Index reiterates its concern at the ruling on the so-called “right to be forgotten” and its implications for free speech and access to information. Index urges the court to put a stay on its ruling while it pursues a regulatory framework that will provide legal oversight, an appeals process and ensure that private corporations are not the arbiters of public information.
While it is clearly understandable that individuals should want to be able to control their online presence, the court’s ruling fails to offer sufficient checks and balances to ensure that a desire to alter search requests so that they reflect a more “accurate” profile does not simply become a mechanism for censorship and whitewashing of history.
Issued without a clearly defined structure to police the requests, the court ruling has outsourced what should be the responsibility of publicly accountable bodies to private corporations who are under no obligations to protect human rights or act in public interest. Index will be monitoring very closely the processes and procedures used by Google and others to make decisions.
Although Google has devised an advisory committee to support its decision-making, the fact remains that we are in a situation in which search engines will be making decisions about what is deemed “irrelevant and inappropriate” – and a situation that fails to take into account the fact that information deemed “irrelevant” now may become extremely relevant in future.
Index urges the court to go back and reconsider its directions to search engines. It must devise a clear structure for managing requests that balances the public’s right to information, freedom of expression and privacy rights.
For more information call: +44 (0) 207 260 2660
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Both Google and the European Union are funders of Index on Censorship
21 May 14 | Digital Freedom, European Union, News and features, Politics and Society
You can find support for the public’s right to access official information in the strangest places. Like a private EU policy paper draft. As leaked to and published by the whistle-blowers’ website Wikileaks.
The European Union’s Guidelines on Freedom of Expression Online & Offline started with NGO consultations, but the EU’s top working group on human rights (COHOM) wanted the final drafting work done behind closed doors. Wikileaks thought different and released a leaked draft last month.
Designed to set Europe’s agenda for freedom of expression and media rights, the original draft as leaked promised an EU commitment to the right of access to official information of all kinds. But you won’t find the pledge in the final version, as released by the EU in Brussels last week. It’s been cut.
Not one of the nine new priority areas for EU legislation listed in the final version guidelines supports the adoption of right to information legislation. The document also excludes promotion of access to information rights from its list of “Priority Areas of Action”.
The key deleted reference, Paragraph 14 in the version published by Wikileaks, summarised the principle as the “general right of the public to have access to information of public interest, the right of the media to access information and the right of individuals to request and receive information concerning themselves that may affect their individual rights”. These lines were cut in their entirety.
The original text was in line with an emerging European political and legal consensus that the right to receive official information implies that a state has a positive obligation to make that information available to them. The guidelines have been firmly steered in the opposite direction.
In London, experts blame their own government for setting a bad example. The UK government argues that citizens have the freedom, but not the right, to seek and receive information. On that basis it rejects the idea that there is a positive obligation on its officials to make information available to citizens, only that they should have a good reason for not doing so.
“I’d say that the UK government continues to deny that there is a right to information in any form,” says David Banisar of the free expression rights advocacy group Article 19. What’s changed, he says, is that UK courts are beginning to interpret UK common law in the same way as the European Court in favour of the general principle of a right to request and receive official information.
This threatens the legality of the UK’s habit of giving certain officials immunity from Freedom of Information Act requests under UK common law, even where this is incompatible with European law, as the UK Court of Appeal concluded last month, finding that Attorney General Dominic Grieve acted unlawfully by denying public access to Prince Charles’ official letters to government ministers.
In a similar but separate case Times journalist Dominic Kennedy appealed to the courts when the Charity Commission, the agency that monitors charities in the UK, refused his request under the country’s Freedom of Information Act to see paperwork from its inquiry into the management of maverick politician George Galloway’s Mariam Appeal for Iraq. Last month, after seven years’ deliberations, the courts cleared the way for the Commission to hand over the papers – though they have yet to do so, and it may still take a judicial review to make them.
The ruling in favour of the Times in March came with a similar string of citations from European Court (ECHR) cases that are comfortably in line with this new direction for UK common law. “You can ask for information from a public authority just because it is a public authority and it should act in the public benefit.” Kennedy told the UK Press Gazette after his win.
Kennedy’s lawyer Rupert Earle of Bates Wells Braithwaite says that while the ECHR rulings clearly favour openness, the court’s principal chamber has yet to definitively state that public bodies have a default obligation to provide information, subject to the usual provisos on privacy and security. It was, he thought, only a matter of time before it did though.
But even if the ECHR isn’t yet definitive on the issue and the UK courts take their own line, it isn’t a reason to block efforts to mainstream access to information rights in EU free expression policy.
A number of free expression rights groups have expressed dismay. Most were initially consulted on the paper before the EU took drafting behind closed doors. They say the guidelines as they stand not only fail to recognise the right to access to official information, but also that this right is a key element of freedom of expression rights – seriously undermining the guidelines’ effectiveness.
They are calling on the EU to reconsider the guidelines and address these concerns. “We do not believe the (Guidelines on Freedom of Expression Online & Offline) are complete without a clear reference to the right to information and a commitment to priority action in this area,” said the groups in a letter signed May 21, 2014 by nine groups, including Index on Censorship.
The only reason why we know the EU has cut support for reducing official secrecy is thanks to Wikileaks. That irony alone suggests that there should be a few more gates in the wall surrounding the EU’s secret garden of information.
Citizens who wanted more information from their government, the courts and the scores of quangos that influence our lives, would have benefited had the EU guidelines been allowed to recognise the principle that the right to information should be the default start point, limited only when prescribed by law and “necessary and proportionate” to a legitimate aim. The EU needs to put things right.
This article was published on May 21, 2014 at indexoncensorship.org
