Privacy in the 21st century… what do we mean by that, exactly?

OK, so the Court of Justice of the European Union has just given its judgement in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González.

The basis of this was that Mr González had his house repossessed several years ago, and – if anyone searches his name on the internet – a newspaper report regarding the repossession comes up among the results. Mr González found this embarrassing and embarked on the current case to put a stop to it via either:

a) Having the offending article removed from the newspaper’s archives or

b) Having Google not index that article under his name.

The ECJ has said that Google does function as a data controller, and thus can be approached to remove links to certain information about individuals on request.

On the face of it, that’s not a problem. Who doesn’t feel slightly comforted by thinking that all you have to do is write to Google and ask them to de-link a certain article, and that really embarrassing photo of you lying drunk in a gutter won’t be accessible to your prospective employer, searching on your name? (Actually, this is one of the advantages of having a really common name. If anyone searches on my name, they’ll get an awful lot of results – most of which are not about me, which is a pity because they’re all more interesting than I am.)

Of course, Google is supposed to ‘consider each request’ and weigh up the merits of the rights to privacy of the applicant versus the merits of the rights of freedom of expression of the person who published the data, and then come to a wise and considered decision that pinpoints the correct balance between the competing rights.

Hands up those who think that this is going to happen?

Hands up those who think that Google will either accept all such requests or reject them all? Or accept all the odd-numbered ones… or something. Anything other than employ a building full of people to sift through applications from celebrities caught doing things they shouldn’t have been doing, and drunken students, and so on.

And then someone will have the job of manually delinking the data, I should think. Now, that’s going to be the time-intensive part.

Or maybe they’ll just remove their presence in the EU, to avoid the expense and trouble. Relocate to somewhere else, and the whole problem goes away. Bit of bad luck for the people who work for Google in Spain, but you can’t make an omelette without breaking eggs.

Unsurprisingly, this case is already being discussed as a severe blow to freedom of speech. One can certainly see the point. In this case, González’ problem was related to the repossession of his house. To some extent, really, who cares? Only people who know who González is. It’s not on a subject of public interest, and if you want to read about house repossessions, you could probably still find the article – it isn’t to be cut off from internet searches entirely, only when González’ name is searched. So the newspaper’s freedom of expression is dealt only a small dent.

The situation is different, though, if you consider the misdeeds of celebrities. Many of them probably not only have things they’d like to see the internet forget, but also expensive lawyers. But the difference between Mr González and these celebrities is that their misdeeds might well be matters of public interest. And, not only that, but such articles will have those celebrities’ names as the major route of finding the article. So – unlike with the article about Mr González, whose name is probably only of interest to his friends and family – the articles about celebrities’ misdeeds having their links via the celebrities’ names removed will result in those articles being effectively unfindable.

This is censorship.

And it will probably have far-reaching effects on the internet and the free flow of information, as is already being remarked. Will Google (and other search engines) adopt a manual approach, and remove links only if requested? This, obviously, advantages those with the time, money, and expertise to be able to do this (celebrities, and their lawyers).

Or will they adopt an automatic approach and design an algorithm that just doesn’t find hits against names where the results are more than, say, five years old? It’s probably do-able, and would be disastrous for anyone who makes their living by their name but who doesn’t have guaranteed recent publicity – for example, small businesspeople.

However, there is another question. What do we mean, exactly, by “privacy”?

Back in the old days (before the internet) information was a lot harder to obtain, and also harder to disseminate. That embarrassing photo from the drunken weekend in Amsterdam would have been in a photo album (or in the bin), not on the internet where everybody with an internet connection could see it.

That political comment you made five years ago, that was really embarrassing in retrospect? Pre-internet, you’d have made it in the pub, where it would probably have been heard by five of your mates and forgotten by the following week. Post-internet, you make it on a discussion board where everybody (including your boss) can see it, forever.

Who should take responsibility for your free choice to act like an idiot in public? Is anyone else obliged to rescue you from the consequences of your own unwise actions?

I don’t think we can continue to apply nineteenth – or twentieth – century notions of privacy to a twenty-first century world. The internet – especially social media – provides opportunities for people to be embarrassingly idiotic in public on an epic scale. Trying to solve the “problem” by introducing a “right to be forgotten” (which is essentially a “right to rewrite history” by pretending events never happened) only introduces an awful lot of bureaucracy and expense, and will probably have a considerable adverse effect on the freedom of expression and the freedom of information.

What we need to do instead is recalibrate our sense of what “private” means. If you put it on the internet… then you’re stuck with it. Think before you post. If you are a celebrity, then the disadvantage of fame and fortune is that your misdeeds will be publicised far more efficiently than ever before. We also need to be less “precious” about ourselves – nobody is perfect, so why attempt to present the appearance of being so?

And, on the other side, a greater degree of charity is needed. So Mr González had his house sold to pay his debts the best part of twenty years ago… so what? Unless his finances are still in a mess, presumably he’s moved on. Why should it be held against him? So there’s a picture of someone, at the age of twenty, performing an unnatural act with a lamppost while under the influence of alcohol… well, they’re thirty now – should it be held against them? Is there anyone who has never in their lives done anything foolish, dangerous, embarrassing or self-destructive? And why should the people who had the luck to do it with no-one there to see and post it on the internet be the only ones to get away with it?

Greater regulation, and a harsher crackdown on freedom of information, is not the answer. An acknowledgement that we have to redefine what we mean by “private” and how we – as people – deal with information about other people, would be far more difficult, but more beneficial in the long-term.

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