EU Right To Be Forgotten threatens innovation and the free and open Internet

by Eddie Copeland

The government has pushed hard to promote Britain as the best place in Europe to start a technology business. It has endorsed the many digital start-ups based in Tech City, and is keen to develop technology and digital industries around the UK. It is right to do so. The internet accounts for a greater percentage of our GDP than it does for any other G20 economy and it’s growing fast: e-commerce is expected to be worth £140billion to the UK by 2016. As a result, we have the most to lose if legislation makes doing business online harder. Policymakers should therefore be standing up to take note of today’s ruling by the European Union Court of Justice on the “right to be forgotten”.

In a landmark case, Spanish citizen Mario Costeja González complained that a 16-year-old auction notice of his repossessed home on Google’s search results infringed his privacy. In its judgment, the court made the assertion that people had the right to request the removal of information that appeared to be “inadequate, irrelevant or no longer relevant”. They went so far as to add that even accurate data that had been lawfully published could “in the course of time become incompatible with the [Data Protection] directive”. For anyone who values a free and open internet, who supports freedom of speech, and who believes that Europe should be working to promote innovation in the digital economy, this is a worrying development and risks setting dangerous precedents.

Who, for example, should get to decide what counts as “inadequate, irrelevant or no longer relevant”? Such vague terminology seems to open the door for anyone to challenge almost anything that is written about them online. Imagine the reaction if those same principles were suggested of print journalism or book publishing. The success of the World Wide Web has been built not just on open technical standards, but on the free and open exchange of information. Any suggestion that individuals should be editors of all content that references them surely amounts to censorship in all but name.

The ruling also places blame in the wrong place. Search engines exist to index information – they do not host or control the content that is uploaded. If there are instances where information about an individual genuinely should not be online, then that case should be made against the owners of the site that holds the information – not those that signpost it. Revealingly, the Spanish data protection agency had already rejected González’s complaint against the Vanguardia website which hosted the information about him. Given that, how does it then make sense to blame the middleman?

It’s not just about the giants

Opening intermediaries to requests to change or remove information is also potentially unworkable. For companies the size of Google (which has over 1 billion users) it would be an almost impossible task to investigate and respond to every request fairly. But this is not just about the tech giants. Placing the same legal liability on the hundreds of start-ups and SMEs across Europe that are developing platforms to improve our online experience would be likely to represent an untenable legal burden that could stop them operating at all. The result would be that we stifle the self-same innovation economy that politicians across Europe have said they wish to promote (and on which the UK economy will increasingly depend). According to the Guardian, the Ministry of Justice has estimated that the European Commission’s wider proposals on data regulation could cost British businesses £360m a year.

The right to be forgotten does not bring data protection rules from the “digital stone age” into today’s “modern computing world”, as claimed by EU Justice Commissioner, Viviane Reding. Rather, it looks like a backward step that risks changing the nature of the free and open internet as we know it. The government says it is seeking a British opt-out from any right to be forgotten law as it “raises unrealistic and unfair expectations”. They are right. In the light of today’s ruling, Britain now needs to make that case loud and clear.

Follow Eddie Copeland on Twitter @EddieACopeland

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