The right to be forgotten v the right to know

On Tuesday, the European Court of Justice delivered a judgment ordering Google to remove links that are deemed “inadequate, irrelevant or no longer relevant”. The ruling was the result of a Spaniard, Mario Costeja Gonzalez, who was most put out that Google searches of his name came up with links to a 1998 newspaper article on his past financial problems, despite his debts having been long paid off.

It’s a bizarre decision. After all, Google is not the publisher of the information; the search engine merely provides a link. The link may disappear, but the information remains. And it’s not as if there was any dispute about the truth of the information – it was simply inconvenient to Mr Costeja’s present-day lifestyle for Google searches to turn up historic truths about his financial situation.

The issue is therefore one of ease of access to information. Anyone who already knows about the presence of the offending newspaper article can go to the newspaper’s website and use the site’s own search function to bring up the article. Those who don’t know, won’t be pointed in the right direction if they try a Google search.

Let’s extrapolate the reasoning of this decision. The Court’s decision was based on a links to a newspaper article, so let’s look at newspapers. If the ability of an internet search engine to link to a “no longer relevant” article is so terrible, then surely the online presence of the article itself is just as bad. If Mr Costeja has the legal right to tell Google to remove a link to the article, he should surely therefore have the right to tell the newspaper to delete the article from their archive. And is there really any fundamental difference (beyond ease of search abilities) between an online archive and a library’s physical or microfiche archive of old newspapers?

If information exists online that is untrue, there should be a quick and easy process available to ensure such information can be removed. However, accurate information should not be censored based on some concept of relevancy. After all, one man’s irrelevancy is another man’s pertinence.

Just look at what is now happening in the European Union following this decision:

And it has emerged that a former British politician seeking re-election has demanded that links to information about his behaviour in office be removed, while a man convicted of possessing child abuse images has requested links to pages about his conviction be deleted. And a doctor wants negative reviews from patients removed from the results, according to the BBC.

The crazy thing is that the take down notices apply to individual search engines. If Google removes links to someone’s past, anyone using Yahoo! will still be able to see it. As will anyone using MSN. Or What the Court’s ruling means is that anyone wanting to do background research on someone will no longer rely simply on a single search engine – begin with Google and then move on. After all, it’s not as if there aren’t hundreds of search engines out there. Just check out this random list of 2007’s Top 100 Alternative Search Engines!

I’ll leave the final word to Google’s executive chairman, Eric Schmidt:

“A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know. From Google’s perspective that’s a balance. Google believes having looked at the decision, which is binding, that the balance that was struck was wrong.”



  1. That is what I don’t get, the information is still out there? Wasn’t this to be expected after the Germans, and now NZ I understand, introduced clean slate laws?

    1. Yep, the Court’s decision relates purely to search engine links to the information. The information’s still there, still available to the public. Search engines can however be told that they can’t link to it.

      As to the clean slate issue, I’m not sure how the German version is to NZs. Our Criminal Records (Clean Slate) Act 2004 means that you don’t have to disclose that you have a past criminal conviction (as long as you haven’t offended within a 7 year period, amongst a few other requirements), and government agencies can’t disclose that information. However, it’s not a blanket clean slate – the moment you step foot outside of NZ, you still have to declare all prior convictions, and of course if you get convicted of anything in the future, your full history must again be disclosed.

      Given that the Clean Slate Act applies only to official disclosures by government agencies and to direct questions asked of an “eligible individual”, it wouldn’t have any application to news reports of prior offending.

      There’s also a few other interesting exceptions in s 19 of the Act:
      – if you’re being investigated by CYFS for certain alleged offending; and
      – if info about your criminal history is relevant to research approved by a government department or law enforcement agency.

      So given the exceptions, I’d argue that it would still be a bad thing to have laws forcing internet links to past criminal offending to be taken down. Having the right not to disclose past convictions shouldn’t be seen as having the right to remove all trace of past bad behaviour.

      Further, it’s only an offence under the Act to disclose info about a criminal record if you have access to criminal records and know that you have no lawful authority to release the info (or are reckless as to whether you have lawful authority). That means that it surely couldn’t be considered an offence for a newspaper (for example) to continue to provide access to an old article about offending now covered by the Act, or for a search engine to link to that article.

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