Yesterday the European Union’s highest court ruled that Google and other search engines must consider and, when appropriate, accept requests from “ordinary people” to have certain specific links to their names deleted from search engines. And this, as you can imagine, has opened up a can of worms. Maybe even a barrelful of them.
There are so many troublesome aspects to this ruling that we frankly are stunned that any jurist could have possibly come to such a decision. Our best guess is that the court knew full well exactly what kind of mare’s nest it was creating, and decided that this approach was probably the best way to get a long-needed and inevitable debate off and running. And at the heart of the debate is not privacy, or accuracy, or fairness — but the right to be “forgotten.”
In fact, the specific language of the ruling was quite clear. Links could be considered for deletion in they were “inadequate, irrelevant or no longer relevant”. Problems:
1. This does not seem to address the issue of accuracy. If I write a post alleging that twenty-four years ago, Hari Koh-Vert cheated on his Bible Studies exam in the eighth grade and thereby fraudulently obtained the Bishop Berkeley Prize For Excellence in Scriptures, does the ruling apply? Apparently, even if I had had irrefutable proof. That was a long time ago, and it would most likely not be considered “relevant” to any discussion of Mr. Koh-Vert’s probity today. But what if I wrote that Mr. Koh-Vert had stolen a donkey from a corral in Guadalajara on a recent vacation to Mexico? The ruling does not affect that, since it was a recent event, and even if Mr. Koh-Vert could prove beyond a shadow of a doubt that he had never been in the vicinity of any donkey at any time, let alone one in Mexico, the link could stand.
2. The ruling does not affect the stories to which the links connect. Those stories remain freely available, but you have to know where to find them. Just googling “Hari Koh Vert” would not lead you to either his scriptural malfeasance or his equally heinous misadventure with a carp and a pot of mustard in an Albany bordello (look it up yourself, while you still can). The stories, posts, or what have you, remain available through their original posting on the web, or through links to that posting on other posts.
3. The ruling is enforceable in the EU — for awhile. There will certainly be challenges to the ruling, and a lot of discussion about its specific applications. There are great issues involved here, including freedom of speech, the ability of miscreants to cover their tracks, and so on — but what does it mean for the US and elsewhere? I can’t see how the EU ruling can affect search engines’ operations in Alabama or Argentina.
Still, it does open up an interesting debate, and I imagine it will be spirited. But we can’t help wondering how this might ultimately affect one of our own projects.
Some time ago, we ran a series of posts regarding the attempts by the Village Voice to line its own pockets and boost its foundering circulation by printing its own series of stories alleging that Bruce McMahan, a wealthy hedge fund manager and philanthropist, had married his own daughter in Westminster Abbey. And if you thought “So what? Who’s going to believe that?” You’d be surprised — or not. The absurdity of the allegation, the hilarity of the details and the absolute absence of any evidence in support did little to impair the reaction to the story: there is an element in any society that will just eat up any tale that combines rich people, bad behavior and a woman wronged. The stories became the most-read posts by the Voice in its history; the fact that they were completely fabricated from whole cloth by an extortionist and a sociopath, and bought hook, line and sinker by a third-rate stringer and a quasi-literate editor did nothing to prevent the wholesale assassination of McMahan on the pages of the web and on Google and other SEOs.
The EU court’s decision, applied to the McMahan episode, might well determine that the events happened long enough ago that he might successfully apply for the links to be stricken from any search of his name. The “inadequate” qualification might be interpreted to mean that the Voice’s articles presented insufficient information to allow the reader to come to an informed decision — for example, among others, the puzzling fact that the primary source for the articles, McMahan’s ex-wife, swore under oath that she had never spoken to the reporter who quoted her at such length and in such detail.
It’s not our purpose to re-engage in that debate in this post — but we do think that the EU has provided an interesting entryway into a much-needed discussion of what sorts of protection an individual can be afforded against attacks such as the one on McMahan, which up until now could be effected with virtual immunity from any type of meaningful redress. Libel laws do not in any way repair this kind of damage; in fact, they simply expose the litigant to harsher and more glaring attention on a topic they by definition find abhorrent. Potential litigants are usually counseled to forget about the noise and wait for it to go away. In time it generally does, as it appears to have done for McMahan, but it never disappears completely. It sits there on the web waiting for someone to find it. Mr. Hoh-Vert, for example, trembles at the thought that his great-grandchildren may someday be informed by a ghost from 1995 that he carried a highly-illicit and carefully-concealed list of the prophets into his Bible Studies class.