Editorial: Embarrassing old data a different issue from privacy

Photo / AP

Do we have a "right to be forgotten"? The proposition would have seemed absurd before the advent of the internet and its search engines. But it has become a question of some moment since the European Union's Court of Justice decided last week that Google ought to wipe "irrelevant" or "outdated" data on request.

The court was ruling on a case concerning a Spanish citizen who found that when his name was put into Google's search engine it brought up a 1998 newspaper announcement for an auction of his repossessed house for the recovery of a debt. Mario Costeja Gonzales said the debt proceedings against him had been fully resolved for a number of years and he contended that further reference to them was unfair and irrelevant.

Spain's data protection agency agreed with him, ordering Google Spain and Google Inc to remove the item from their index and ensure further access to it was impossible. Google challenged that decision in the National High Court, which referred the issues to the EU court. Its ruling has created a fearsome technical challenge for search engines which are fairly passive scanners of data entered by others, especially news media, but it is the principle that matters.

Do people have a right to expunge their personal record of references to things they regret? In real life this is not possible. We may wish certain incidents to be forgotten but there is no "right" to demand it. Memories that others retain can linger longer than they should, longer sometimes than in the mind of the person concerned, such is human nature's capacity for selective recall.

Do we have a right to stop people mentioning these things to others if it happened long ago and is "irrelevant" to us now? The European Court wants Google to make that decision on complaints from the person concerned. Within a few days of the ruling, people were asking Google to remove references to crime, tax dodging, love affairs, professional suspension, even customer complaints against a product or service.

Crime might seem the least deserving of a right to be forgotten but crime already has law that can remove an offence from official records after a decent interval. Wiping all reference from the internet, though, is not as simple. No publisher can control the spread of information once it is on the web.

If search engine administrators are to be held responsible, how are they to decide who deserves protection? The easiest to refuse would be applications from celebrities or other public figures.

The European Court was careful to exclude them from protection. The public has a right to know what they have done. The difficult cases will involve people whose name brings up very few items on a Google search. Their only record may be the reference to an embarrassment long ago.

But the fact that it is the only record of them gives it added value as a public resource. The solution to their complaint may be not to remove them from the web but to invite them to write what they want the world to know about them, just as millions do on social sites.

A "right to be forgotten" is being asserted as a right to privacy, but it is not the same. Privacy is a right to be protected from intrusion or publication of personal information that you can reasonably expect to remain private. The information that people may want wiped from the web is likely to be material that would not be covered by a right to privacy at the time it occurred.

Time, they argue, makes a difference. Maybe, but it does not make it private.