Forget what you may have read. The ruling against Google by the European Court of Justice has not created a “right to be forgotten” or anything like it. No such right exists, although it may be created when the Data Protection Regulation resumes its path through the EU’s legislative process.
What the case has done, however, is create a number of important precedents. And another, almost overlooked ECJ ruling, has done more to impose limits on how long data may be kept.
Google is now a data controller
The most important effect of the case is to put Google (and any other search engine) in the position of a data owner, rather than a company which just processes information. As with other cases against online intermediaries - especially those brought by copyright owners - Google had claimed it merely links to material which others hold rights in.
This was never going to be credible. Google’s search rankings are information in their own right, created by its algorithms, and form the basis on which it makes money. So search results are not neutral, they are an information product in their own right (which the search engine fiercely protects in turn).
For those with long memories, this is a reminder of the 1995 case in Germany which saw Compuserve’s country manager jailed for distributing pornography (the conviction was later over-turned) because links to porn sites were available via its internet service. At that time, the courts took the view that the ISP was a publisher, not a postman, and therefore had responsibility for the content it made available. More recently, Italy imposed suspended prison sentences on three Google executives in 2010 in absentia for invasion of privacy relating to a bullying video on YouTube. Google and its peers will now have to face up to their legal obligations.
EdgeRank looks flawed
At the heart of Mario Costeja González’s claim was that a 16-year old newspaper report on a debt enforcement appeared top of any Google search for him, leading to reputational damage to the lawyer. This exposes the flaw in how Google ranks its searches (and to a core belief among digital marketers), giving most weight to sites that are linked to by other online sources.
Since the original story appeared in a newspaper, its online presence was always likely to be more linked-to than, say, the lawyer’s professional website. And as a person more active in the physical space than online, this one story overshadowed anything else González may have done.
If you are given points on your driving licence for speeding, for example, they are expunged after a maximum of 11 years. If you get a minor criminal conviction but do not re-offend, your record is cleared after ten years (and possibly sooner). So why should online information last forever, especially when search results are becoming a de facto social credit score? The age of results in searches should now become part of how they are weighted.
The ECJ is not censoring the internet
Wild claims have been made that this case represents an attempt to censor what gets published online. Those who advocate almost total and unlimited freedom of speech on the net are particularly outraged. But the ruling did not require the original story to be taken down, only that Google should consider requests for link takedowns. This gives individuals similar rights to those already exercised by copyright owners when a search engine links to their material which may have been pirated.
Data retention may no longer be legal
Overlooked at the time, on 8th April the ECJ declared that the Data Retention Directive was in effect invalid. This is the law requiring ISPs and phone networks to store information which may be of use to police and national security services. But the court found it to be disproportionate, a violation of the fundamental human right to privacy and to data protection. So mid-term data holds by these (and potentially many other) organisations can no longer be defended on the grounds of security.
All-in-all, the message from these cases is clear - information now has a shelf-life.