Forgetting and Futility

September 13, 2015

On 20 August the Information Commissioner issued an enforcement notice against Google that related to the right to be forgotten. While all the rest of you no doubt knew about this at the time, I was in ignorance on the Lleyn Peninsula (an area of Wales where the Internet is entirely in Welsh). I was engaged in teaching my granddaughters how to body-board. That activity showed that, while I had indeed forgotten more on the subject than they knew, the scale of my forgetting was almost total so I had no extra knowledge to pass on. Moreover, the waves refused to follow the pattern that I required in order to demonstrate ‘technique’, and not a lot can be learned by a ten-year-old girl from the sight of an old man of six-foot flopping on top of Elsa from Frozen with a shout of ‘Yes’. Deep-seated mental trauma was probably more likely to result than surfing fame.

I thought that my boarding activity perfectly captured the twin concepts of forgetting and futility. And then I heard about the Google enforcement notice and realised that I had been outdone.

Google Inc has been ordered by the ICO to remove nine search results after the ICO ruled that they linked to information about a person that was no longer relevant. The enforcement notice can be viewed {here:}. There is quite a bit of history, which I summarise below based on the limited information in the enforcement notice.

At the request of X, who had noted the effect of {i}Google Spain/Costeja{/i}, Google removed ‘a link’ to a report about X’s conviction for a (‘relatively minor’) criminal offence almost ten years ago in respect of which X received a conditional discharge. But, following its normal practice, Google informed the owner of the website containing the report (Z Ltd) that a link had been removed. Z Ltd published an article about the removal of the link which included details about the original conviction and similar articles were then published by other organisations. These new articles were of course capable of being found by searching on Google for X’s name and were no doubt the most prominent result. X then asked Google to remove the links to these new stories and Google refused on the grounds that the links were still relevant and in the public interest. X complained to the ICO and the ICO determined that the links identified by X should indeed be removed, principally on the basis that:
• no individual in public life was involved and the information would not protect the public from improper or unprofessional conduct
• sensitive personal data was involved
• the information is not ‘current’
• the data processing by Google is having a disproportionately negative impact on X’s privacy
• the journalistic interest can be adequately and properly protected without searches based on X’s name being the basis of links to the articles.

Google is required to remove the links by 22 September. It may appeal or it may have removed the links already.

But X and the ICO seem to me to be forgetting the obvious. Google might as well take the easy line and remove the links. It is then very likely to follow its normal practice and inform all of the organisations concerned that a link has been removed; there is nothing to stop it doing so. Those media organisations won’t find it hard to work out why the link was removed, and Z Ltd has already shown a commitment to republishing. There is nothing to stop it doing so again – probably joined by even more media organisations smelling blood and exuding false sympathy. In short, there is nothing to stop X’s story being dragged from quiet corners into the mainstream. The issuing of the enforcement notice may be a perfectly logical and carefully considered move but it is futile and somebody should be telling X that, like the waves in the sea, the British media will not do as they are told.

One slightly worrying aspect of this is that the ICO does not seem to have taken the chance to hear from Z Ltd, perhaps by way of a written submission; including Z Ltd in the process might have increased the chances of it accepting the ruling (although I admit that’s a faint hope). A point worth noting too is that the notice was confined to the activities of Google UK – I am not sure that the CNIL will be happy about that. And the really worrying thing is none of this is X’s fault, one understands the action and later reaction perfectly, but X is stuck and exactly the same thing is likely to happen in the case of every ICO ruling arising under {i}Google Spain{/i}.

I acknowledge that I may be underestimating both the ICO and X. Perhaps the ICO is following the example of King Cnut and demonstrating the limits of its powers. If so, it would do well to remember that the media have entirely distorted Cnut’s efforts until he is now a byword for arrogance. And perhaps, X wants to meet Philip Schofield and appear on The One Show. If that was the idea, I applaud X’s subtle strategy.