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Rights and wrongs

9 July 2014 By Edward Hadas

The public has a right to know. Individuals have a right to privacy. The common good is served by both these contradictory statements, so someone has to decide how to balance them when they come into conflict. When it comes to internet search, the European Union’s Court of Justice has given the job to search engine providers such as Google. In a way, that’s a good call.

The court decided in May that some internet links deserve to be “forgotten” because certain data can over time become “inadequate, irrelevant or no longer relevant”. The search operators were held responsible, in the first instance, for judging whether to grant requests to remove links.

The court’s decision creates a mess, because it provides no practical guidance. Still, it made a clear step forward in the endless debate between “the legitimate interest of internet users” and “the right to protection of personal data” by recognising that search engines have changed the meaning of privacy.

In the pre-internet era, much information that was officially public was, in practice, more or less private. Facts or allegations which could only be found after a long search of newspaper or police archives, or after asking acquaintances for photographs or diary entries, were unlikely to influence hiring decisions, business transactions or general impressions except for the most tenacious of detectives.

Youthful indiscretions might haunt a celebrity – like the rumors of affairs that dogged President Bill Clinton which one staffer dubbed “bimbo eruptions” – but the common man could pretty much count on anonymity, even if he had previously achieved fleeting local notoriety.

Search engines like Google changed that. They made formerly buried information readily available. In the case before the EU court, “googling” the name of a Spanish businessman pulled up news stories from 1998 about old social security debts, which he complained about because the matter had been settled long ago. That is pretty typical. The information was not wrong and not clearly irrelevant to the general public, but neither was it exactly right or obviously relevant.

Right-to-know purists argue that people should simply get used to the murk which is created by the internet’s stirring up of the sediment of history. Whatever the philosophical merits of that claim, it is to some extent a statement of fact. Information has become so much more accessible that only a totalitarian government could dream of controlling all of it. As long as not all governments are totalitarian, it will be much harder for anyone to keep secrets.

However, privacy is still worth protecting. In many jurisdictions, some criminals are allowed to erase old convictions. Search engine operators must do what they can to help. The European court has decided to extend that right to non-criminals, implying that search results which are invasive and socially counterproductive should be discouraged. There’s an important difference between requiring search results to take account of how recent and relevant information may be and suppressing the information itself. The EU court explicitly said the news reports about the Spanish businessman had been legitimately published, and the ruling affects only search listings.

Once it is accepted that search engines do not owe absolute respect either to the right to know or to the right to privacy, the next step is to find ways to decide which trumps the other in particular cases. In the modern world, such work is usually left to some combination of courts, legislatures and regulatory agencies. In other words, governments are expected to resolve this type of problem.

The EU court has already started the process. However, it chose not to give the first responsibility for privacy decisions to any government or judicial entity. Rather, it told search providers to figure it out, subject to appeals to the relevant authorities.

In the standard economic theory of private companies, that sounds crazy. Companies are supposed to obey the law, but in this theory their remit does not extent to creating quasi-legal precedents or balancing conflicting public interests. An economist might point out that few of the disputed searches bring any meaningful revenue to the operators, so they are being asked to police something that is secondary in their business model.

But this theory is inadequate. Google and its rivals are better placed than any government to find ways to keep the internet fair. For one thing, only they have the expertise. No external organisation can rival their knowledge of how people actually use search engines, how search algorithms function, or how any particular arrangement for protecting privacy could work.

More fundamentally, search companies rely heavily on the society in which they operate. It provides the raw materials for their businesses: communications infrastructure, electricity, and vast amounts of information generated by people living in the same society. Search firms profit from this physical and social infrastructure, and to repay that debt they should operate responsibly.

The Court of Justice’s mandate won’t work without Google’s active and imaginative cooperation, but the Californian company seems keen to try to find a solution. That willingness will probably cost it money in the short run, but even shareholders should recognise that as being better than the alternative. Companies that lose the goodwill of their customers and their regulators eventually also lose out on profit.


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