The Internet has much to say about the recent ruling by the Court of Justice of the European Union, which determines that if a person wants some personal information removed from Google’s search engine, that person has the right to appeal to Google (GOOG) for redress. Writing in the Guardian, Charles Arthur pointed out that the ruling might make more sense across Europe, where the right to privacy often has primacy over the freedom of speech, than in the U.S., where the First Amendment reigns. City University of New York Graduate School of Journalism journalism professor Jeff Jarvis, among others, took to Twitter (TWTR) to say that the “EU’s ‘right to be forgotten’ is a blow against free speech.”
I, too, believe that as much information as possible should be available, and that the Web is a uniquely wonderful mechanism for achieving that. But, in this case, I believe the EU did the right thing, and the United States should learn from the court’s decision.
I used to work as an editor at Harper’s Magazine, where I was in charge of putting the magazine’s archives, which reached back to 1850, onto the Web. After the archive launched in 2007, articles from those archives started to show up in Google search results and I started to receive e-mails from people asking me to remove or hide potentially embarrassing articles, often decades old, from Google.
The petitioners were sometimes litigious, sometimes plaintive. An example: In the 1990s one person had submitted a funny letter about sex to a contest. Our magazine had republished that letter. Later, in 2007, that article was the first search result to show up in a search for the person’s name. He was out of work and in the middle of a job hunt. By the tone of the e-mail, he was panicking. What would a prospective employer make of this joking sex letter?
The EU ruling addressed a similar situation. In 2010, Mario González of Spain sued Google and a Spanish daily newspaper for displaying, in the search results for his name, “an announcement for a real-estate auction organised following attachment proceedings for the recovery of social security debts owed by Mr Costeja González.” He wanted either Google or the newspaper to remove the record so that he could be better-represented online.
Back in 2007, this was all very new. I had spent a great deal of time working through issues of copyright when I was building the Harper’s Magazine archives, but I hadn’t expected to encounter this personal dimension. After all, we were archiving a national magazine, not private correspondence. But things that are public often become private in time, largely because keeping them persistently public has been impossible. Until a decade ago, the past was the domain of historians. Now we live in a history glut.
So, back in 2007, two things were decided:
First, we had a professional and ethical requirement to preserve the historical record of the magazine on the Web, no matter how inconvenient. The website—our pages and our own search engine—would be inviolable. (Years later, the Spanish court agreed with us: “The information in question,” it noted, “had been lawfully published.”)
Second, we definitely did not have a professional and ethical requirement to maintain Google’s index of the Web. In fact, Google makes it easy to obscure certain pages from its index. You can put a line in a text file called “robots.txt” or use its webmaster tools. Technically, it’s not a big deal for publishers to remove a few pages from Google. It’s not a big deal for Google, either.
Google has long been willing to scrub the public record in order to ease the distress of its users. It doesn’t advertise this widely. But its index has never been total. Illegal material, copyright violations, and the like have been kept out. Google is not an impartial arbiter of the Web. It is a mediated, incomplete index, influenced by plenty of outside factors and long-term commercial goals.
And Google has been down this path before. In 2001, it bought Deja News, inheriting a large archive of Usenet discussions that were created by thousands of people. The Usenet discussion system was established in 1980; it was always public but fleeting—posts typically vanished after a few days, victims of expensive disk space. Deja’s archive went back to at least 1995, and in some cases further. Suddenly conversations that people had expected to vanish were part of the permanent digital record, folded into Google Groups. Here’s one reaction, many years later:
“When I was younger I dumbly admin’d and posted in an old deja news group under a rather unique username,” wrote one person to a message board, “that at the time didn’t think about the potential of it coming back to haunt me. The group contained “adult” literature. … It’s been 14 years. I don’t remember the login info for the deja groups. I’m even using a false name to write this question. That’s how embarrassed I am about the particular group that’s sat dormant for over a decade.”
And here’s a person, on Ask Metafilter, a message board: “I do not hold the same opinions as I used to. And I’m certainly not as open as I used to be about personal matters. When I search for myself I find myself anxious and depressed to see the old stuff come up.”
“Accept it,” came a reply. “Move on. It’s the new normal.”
However, not long after the Deja News acquisition, Google did allow people to submit requests to remove their old posts. Today the process is more complex, as shown in several posts to message boards, but it remains possible to purge old posts.
Looking back seven years, I believe the decision we made at Harper’s Magazine (don’t change the magazine, but block Google from indexing the article) was the right one. It makes sense to the see the EU come to the same conclusion. In practical terms, such requests were rare; we received a few per year, which were evaluated and discussed as they came in. The traffic Google sent to these articles was of vanishing monetary value to the magazine. But the people asking us to keep an article out of Google’s index had a tremendous amount to gain–possibly an opportunity to be gainfully employed, as well as peace of mind. As long as we were not being asked to hide coverage of a crime, it was clear that the greater good would be served by keeping the names out of Google’s search results. These were not famous or notorious people but normal people caught up in the sweep of a search engine and trying to reclaim agency over their lives.
Full participants in Internet culture—which includes nearly all members of the media—are already controlling their public Web personas. Some of us do that deliberately, hosting our own Web pages and blogs, running Tumblrs (YHOO), and the like. For others, it happens by default: We fill out LinkedIn (LNKD) profiles and write blog posts with our names on them; we tweet and tweet. If we do unsavory things, we know to do them under pseudonyms. As a result, when we search for ourselves, we are familiar, often pleased, with the results.
Far many more people lack the skills or energy to build their presence, amplify their personal brands, or participate in social networks. Such people end up identified by cultural detritus—court proceedings, foreclosures, divorce notices, mug shots, and so on. Third-party purveyors of this information are under no obligation to update or correct their records. As Eric Posner wrote in Slate:
“The problem of old embarrassments or troubles living forever online … is actually worse for people who are not public figures—the people who are supposed to receive greater privacy protections from the law. If you’re a movie star, or even a blogger, Google will turn up dozens of new links when someone searches your name, and the old, embarrassing ones will quickly be buried. But if you’re just a regular person, a news story is likely to continue to surface at the top of your Google results.”
Many people are excited to talk about “the next billion Internet users,” but the Web we are building for these people operates along principles that are sometimes counter to their best interests. The Internet in its earliest days allowed for ceaseless reinvention.
The Internet has always been a place in which one can create a persona, an identity. It’s a place that permits redefinition—or did.
We have collectively granted Google the de facto right to define our public personas, on our behalf, but it’s a company operating in the interest of its shareholders—a consumer product, not a public trust. So perhaps the “right to be forgotten,” is the wrong phrasing. It’s more the “right to a persona.” The EU has decided to grant this right to individuals and allow them to shape how their past is presented to the world. Hopefully the United States will follow its lead.