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Europe starting to see the flaws in the 'right to be forgotten' ruling

Patents, Copyrights and TrademarksJustice SystemTrials and ArbitrationOnline Media IndustryBBCEuropean Union
Early uses of new European 'right to be forgotten' rule show how flawed the system is
European publishers should push back when search engines remove links

One week after Google started implementing a high court's order providing a "right to be forgotten," Europeans are starting to discover what mischief the court has invited.

The Guardian reported Wednesday on several of its stories that had gone missing from Google.co.uk, including pieces about the controversy that led to a soccer referee's retirement, "a 2002 piece about a solicitor facing a fraud trial standing for a seat on the Law Society's ruling body and an index of an entire week of pieces by Guardian media commentator Roy Greenslade."

On the same day, an economics columnist at the BBC noted the disappearance of a column he'd written in 2007 about then-Merrill Lynch Chief Executive Stan O'Neal exiting the company after it reported "colossal losses" on securitized packages of subprime loans. The column is still available on the BBC site, just not findable on Google.co.uk. Or on other Google properties in the European Union.

The removals came courtesy of the European Union's Court of Justice, which ruled in May that people had the right to eradicate links to information they considered "inadequate, irrelevant or no longer relevant, or excessive." Among many other problems with the ruling, appeals were allowed only of a search engine's decisions not to remove links. The order didn't provide any venue for publishers and sites to argue that removing the links would violate the public interest.

One immediate result has been a "Streisand effect" for some of those who succeeded in removing links, as news stories about the removals resuscitated the controversies they had hoped to bury. But how long will the removals be newsworthy? How many public figures and politicians will be able to whitewash their searchable records and distort the past? At some point, the backlash will fade and the rewriting of history on search engines will begin in earnest.

Short of the court rescinding its decision or European governments changing the law, the best thing that can happen now is for authorities to make the process more like the notice and takedown procedures for alleged copyright infringements online. Once Google grants a request to remove a link, the publisher should have the opportunity to restore it simply by asserting that there's a public interest in the information. The burden would then shift to the applicant to show that his or her interests outweigh the public's.

At it stands, Google is the main arbiter of whether the public would be harmed by a link's deletion. That makes the company the last line of defense for its European users' right to know, a position no single commercial entity should occupy. What's worse, the court order tipped the balance in favor of removal by declaring that, "as a general rule," individual privacy interests trumped the public's need for a comprehensive index to the web.

Here's a suggestion for publishers in Europe: Every time you receive notice from a search engine that a link has been removed, look at what's being hidden from the public there. See if alternative versions of the same story can easily be found. And if not, find a way to republish it.

In the meantime, any time Europeans see a notice on Google.fr or Google.co.uk that some links have been removed, they should immediately run the search again on Google.com. Good thing it's a global Internet.

Follow Healey's intermittent Twitter feed: @jcahealey

Copyright © 2014, Los Angeles Times
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