Online Content – The Battle for Balance in Free Speech

Google held responsible by the European Court of Justice for links to online content considered ‘irrelevant’ and harmful to individuals.

Much has been made of the ruling by the European Court of Justice against Google, which obliges them to ensure that there are no links to past ‘irrelevant’ personal data concerning a Spanish individual.

Most media coverage refers to a ‘right to be forgotten’ element. This is a reference to a proposed new law said to be intended to increase the privacy protection of ‘ordinary’ EU citizens. In fact, the ruling was made on the basis of existing (some would say outdated) laws. Here is how the BBC report the case – https://www.bbc.com/news/world-europe-27388289

and here are the details of the ruling and the EU Directive it was brought under

https://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf

https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML

What it, and the proposed new legislation – and other new or proposed new laws affecting online content demonstrate is the impending maelstrom of a battle and potential legal meltdown concerning the balance between freedom of speech, personal privacy and defamation.

The proposed new EU Directive is said to be aimed at helping protect young people – to quote a spokesperson for Viviane Reding, the European Justice Commissioner.

“These rules are particularly aimed at young people as they are not always as aware as they could be about the consequence of putting photos and other information on social network websites, or about the various privacy settings available,” said Matthew Newman.

He noted that this could cause problems later if the users had no way of deleting embarrassing material when applying for jobs. However, he stressed that it would not give them the right to ask for material such as their police or medical records to be deleted.

Although the existing directive already contains the principle of “data minimisation”, Mr Newman said that the new law would reinforce the idea by declaring it “a right”.

The concept of providing greater protection for young people, even from their own misguided follies is a noble one – but inevitably, there will be further complications.

What will constitute a worthy case – and how will the likes of Google manage all the applications they will receive – and how many cases will then be referred to the authorities for further judgement?

A Pyrrhic Victory?

Even in the case declared a victory against Google, there seems to be a rich irony absolutely created by the nature of the internet. The supposed objective of the complainant in the case was to remove from search results, very old references to content referring to the forced sale of a property he owned. But now coverage of the case he brought has made many more millions aware of the circumstances – and put a whole new raft of references to this fact online. Will there now be further applications to remove the details of his victory which actually exacerbate the problem he wanted resolved?

The Tip of a Legal and Moral Iceberg

Will, for example, sole traders attempt to claim that old and critical online reviews about them are now irrelevant and must therefore be deleted under the recent ruling and proposed revisions of the EU Directive?

And new laws concerning online content are being revised in many parts of the world – particularly those concerning defamation. In the UK, the new Defamation Act will shortly be facing its first tests as cases are prepared against publishers of third party or user generated content.

KwikChex is probably just one of many representatives of businesses that are currently preparing actions regarding claims of defamation that have failed to be resolved by online publishers such as reviews websites.

An example of what is coming is the problem concerning allegations of food poisoning against restaurants and hotels. Whilst many comparatively less serious cases of defamatory content have been removed when strong evidence of fake reviews has been submitted, there has been strong resistance on this subject by reviews sites. In reality, most reviews sites have no idea whether such allegations are true or false, misinformed or malicious – such as those posted by competitors.

Increasing Liabilities and Costs

Now, with the advent of the new laws, sites like TripAdvisor are going to find themselves with a lot of work to do and potentially massive liabilities if they do not follow the rule of law. And it will still not be straightforward – inevitably, there will be arguments over jurisdiction and honest opinion’ etc. But that will not prevent the processes now taking place and the deluge of cases and actions – and no right minded person should deny the right of a business to have false and very damaging content removed.

The number of businesses and people attempting to use these new laws is likely to be extreme – and not all will be worthy cases but they will tie up internet publishers of reviews and search engine companies and potentially the legal systems. KwikChex has a number of investigative and evaluation systems that help identify genuinely defamatory material, but many complaints and cases are bound to be from those that simply don’t like anything bad being said about them and abuses of the system and attempts at bullying people with honest opinions is bound to follow.

Time for Sensible and Fair Proactive Measures

Given all that is happening the most sensible course for Internet Service Providers carrying or linking to potential online denigration is to come together with consumer organisations and those that represent the interests of businesses and their reputations and to work towards voluntary measures that will avoid the meltdown. The fact is that even when just considering reviews sites, there are so many variables when it comes to diligence and honesty. There are many lacking in diligence, there are some that are unethical and there are some that are downright dishonest / fraudulent. Raising quality and transparency levels can be a major step forward in avoidance of liability – and of course in providing consumers with much more reliable and accurate information.

KwikChex is calling for a voluntary ‘Reviews Site Charter’ to include:

• A voluntary submission to an independent and expert evaluation of reviews sites, including an appraisal of their capability to deal with review fraud.
• The removal or archiving (if consumers do wish to see aged reviews) of reviews over two years old.
• Full transparency – details of the ownership of the sites, including the legal entity behind them.
• A free and easy to use response system for business owners on all reviews sites.
• A guaranteed, rapid system to deal with any allegations of the most serious types, such as criminality or elements likely to cause serious harm such as health & safety issues and food hygiene (i.e., accusations of food poisoning). These are so potentially harmful to a business that we believe they should be suspended until verification processes are carried out – at the very least identification (without the immediate loss of anonymity) of the authors – and preferably a stronger authentication process, such as bills of sale. The businesses should then be permitted to defend such allegations based on available evidence.

Read the update to this blog ‘Convicted criminals and embarrassed politicians attempt to use so called ‘Right to be Forgotten laws’ 16/05/2014 Click here