As predicted – The “Right to be Forgotten” quickly becomes the “a right going farcically wrong”

Robert Peston, the BBC Economics Editor reports on the BBC website how an article he wrote on his blog in 2007 is to be blocked in searches by Google on the basis of the ‘Right to be Forgotten ruling by the European Court of Justice.

If correct (he has apparently had notification from Google) and if Mr Peston’s assumptions are correct that it must have been as a result of an application emanating from Stan O’Neal, former head of Merrill Lynch – then it demonstrates how farcical and messy this is all going to get.

The epitome of a Pyrrhic victory
When the original ruling was made – finding in favour of Mario Costeja González, a Spanish citizen that wished to have details of a home repossession expunged from results, we pointed out that the actual result of the ruling was that several million more people now knew about the content he wanted suppressed – and that there are many more search results now regarding this content then there ever were before. To say that it was a Pyrrhic victory is like saying war can be dangerous.

The same type of results are now appearing with regard to Stan O’Neal. Search his name today on Google and see what you get.

Will there now be new applications to block all the new content? This could be the Internet content version of perpetual motion.

Google’s dark humour revenge?
Perhaps Google started implementing the ‘fixes’ so quickly because they knew that the applications would probably come back and bite the applicants – a dark humour revenge? Certainly by informing the ‘owners of the original material that they are blocking, this is likely to occur time and time again.

The criteria for blocking results is currently up to Google – but expect more twists as those rejected and the owners of blocked content attempt to reverse Google decisions in court

Fair use of the law threatened
For KwikChex, the ruling meant a chance to create a fairer and more accurate online perspective. We have made and are in the process of making more applications under the ruling – but our focus on behalf of clients has been on the basis of inaccuracy – or what would often be regarded as defamation (i.e., false allegations) and harassment. If the owners and authors of such content are also informed by Google and start publishing new material, then instead of protecting those that have genuine cases, their problems will be exacerbated – it’s time for an urgent review of the processes involved.

Expect more tests of other online content soon
In addition, as we pointed out, this is not just about Google. There are distinct possibilities that, for example, small guest houses / bed & breakfast owners could argue that very old reviews on sites such as TripAdvisor are a personal infringement under the precedent set and the new laws being implemented in Europe as they refer to a private home and they thus have a right to removal. This is certain to be tested – first with applications and then quite likely in court. KwikChex already has requests for help. In this instance, it would be far better of course for TripAdvisor to simply delete or archive reviews over 2 years old across the board since they distort the true, up to date perspective that consumers are really interested in. The full retention of such aged material can only be so TripAdvisor and similar sites can lay claim to many more millions of reviews and affect search results to a greater degree – selfish and commercial objectives rather than consumer focused. Incidentally, on the BBC radio programme You & Yours that KwikChex participated in recently on this subject, a statement from TripAdvisor asserted that the ECJ ruling was only applicable to search engines – a very misinformed assumption, as it applies to all who are responsible for information published online regarding EU citizens.

Other KwikChex Blog entries:
Right to be forgotten – Google just the start
Convicted criminals and embarrassed politicians attempt to use so called ‘Right to be Forgotten laws’
Online Content – The Battle for Balance in Free Speech