Survival guide for data in the wild

Comment Anyone familiar with The Day Today‘s “IT’S WAR” episode will know how much the media love to create an imaginary threat. Channel 4 had its own “It’s War” moment yesterday, asking whether the European Court of Justice (ECJ) had signalled the “end of history” – by supposedly giving anyone the “right to erase their past”.

The line a lot of the media have been taking is a testament to how one corporation (Google) has influenced how we think about things. But there’s a problem: it just isn’t true.

You won’t be able to “censor Google” just because you don’t like something. Nor will asking Google get something deleted. There’s no new “right to be forgotten”.

There’s nothing new today that need worry publishers and journalists – Lord Leveson’s Whingers’ Charter has far more of a chilling effect on news operations, especially smaller ones. And Google can say no to complaints. The courts ultimately decide whether a complaint has merits or not. In short, power hasn’t shifted dramatically one way or another. It hasn’t really shifted at all.

All the ruling did was make Google subject to European laws. The case brought against it by Spain’s data protection agency (on behalf of a Spanish citizen) merely argued that Google should respect one of European law’s “fundamental rights”, that of the right to privacy. Google’s reaction to a European asserting his or her rights was a familiar one: You can’t catch us. N-yerr.

The internet giant structures its international operation quite deliberately so it remains beyond national laws. Google argued that, as per an EU directive, its data processing is performed in the United States, and its totally separate businesses in each European country merely sell ads.

But Google’s Europe tentacles are not just ad-sellers

This hair-splitting argument was thrown out yesterday. The ECJ judged that they couldn’t be standalone businesses because without the data processing, the ad businesses wouldn’t exist. The court wrote that the two were:

inextricably linked since the activities relating to the advertising space constitute the means of rendering the search engine at issue economically profitable and that engine is, at the same time, the means enabling those activities to be performed.

It therefore had to treat Google as one corporate entity. And simply because, as a multinational, you’re everywhere doesn’t mean you can pretend to be nowhere. That’s reasonable enough.

(Google had actually advanced an even more hair-splitting argument in its defence. It argued that it didn’t specifically process personal data. It processed “all data”, so if personal information was caught up in its machinery, well, that’s too bad. That argument was given short shrift.)

Yesterday, the ECJ simply affirmed that privacy is a “fundamental right”, defined here in Article 7, alongside other fundamental rights like free expression, and Google can’t ignore it. The two rights will bump into each other from time to time. and the justices painstakingly pointed out that one fundamental right doesn’t trump another.

So. The ECJ didn’t create a new fundamental “right to be forgotten”, which Commissioner Viviane Reding has called for. Any right to be forgotten in Europe remains just as it was on Monday – a privacy right that has to be weighed against other rights. It’s not like you can suddenly bring a gun to a knife fight, and demand stuff is removed. Index on Censorship got it badly wrong yesterday, comparing the ruling to book-burning. Wikipedia supremo Jimmy Wales frantically took to every media outlet that would have him to echo this. And without apparently fully understanding the ruling, Channel 4 News magnified the alarm.

Jimmy Wales whips up the mob

This is nonsense because, as a complainant, you still have to go through a state’s Information Commission or a court, and a judge still has to decide whether your case has merits. The justices spend some time discussing how this balance between privacy and expression should be struck.

The ECJ acknowledged that there’s a conflict, and that asserting a right to your private life infringes upon someone else’s freedom of expression.

A citizen can only ask a “data processor” to take action if the information is “inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed” – and that adds up to something seriously prejudicial to the citizen.

So this is not censorship or book-burning. It’s only an issue if it’s inadequate, excessive or out of date and if it’s considered prejudicial to the citizen. So it isn’t a Whingers’ Charter. Although that doesn’t mean people won’t start to whinge.

But whinging isn’t enough to get a story removed from Google, the justices say, quite clearly (and twice). The right of removal – if the conditions have been met – can still be outweighed by freedom of expression and the public interest.

The ruling states:

However, [removal] would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.

In other words, the European Court acknowledged that a dominant search engine has immense power over reputations – far more than any newspaper. It has a unique ability to create and define an individual’s reputation which a newspaper alone can’t create. That’s “information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty,” according to the ruling.

Using blade systems to cut costs and sharpen efficiencies