European Courts have been great; just one fumble to correct

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We have an outstanding parliament that works in the Public Interest. Where mobile roaming charges are being eroded into oblivion, where there is tacit support in law for the principles of Net Neutrality, and where the Minister is fully supportive of a forward looking (for consumers) Digital future. That is the European Parliament, and the excellent work of Neelie Kroes and her staff.

The one blight on the EC’s otherwise excellent work has been the decision to enact – then outsource – a “Right to be Forgotten” process to a commercial third party. The car started skidding off the road of sensibility very early in the process, albeit underpinned by one valid core assumption.

Fundamentally, there are protections in place, where a personal financial misfortune or a criminal offence in a persons formative years has occurred, to have a public disclosure time limit enshrined in law. This is to prevent undue prejudice after an agreed time, and to allow the afflicted to carry on their affairs without penalty or undue suffering after lessons have been both internalised and not repeated.

There are public data maintenance and reporting limits on some cases of data on a criminal reference database, or on financial conduct databases, that are mandated to be erased from the public record a specific number of years after first being placed there. This was the case with the Spanish Gentleman who believed his privacy was being violated by the publication of a bankruptcy asset sale well past this statutory public financial reporting boundary, in a newspaper who attributed that sale to him personally.

In my humble opinion, the resolution of the court should have been to (quietly) order the Newspaper to remove (or obfuscate) his name from that article at source. Job done; this then formally disassociated his name from the event, and all downstream (searchable) references to it likewise, so achieving the alignment of his privacy with the usual public record financial reporting acts in law.

By leaving the source in place, and merely telling search engine providers to enact processes to allow individuals to request removal of unwanted facts from the search indexes only, opens the door to a litany of undesirable consequences – and indeed leaves the original article on a newspaper web site untouched and in direct violation of the subjects right to privacy over 7 years after his bankruptcy; this association should now have no place on the public record.

Besides timescales coded into law on specific timescales where certain classes of personal data can remain on the public record, there are also ample remedies at law in place for enforcing removal (and seeking compensation for) the publication of libellous or slanderous material. Or indeed the refusal to take-down such material in a timely manner with, or without, a corresponding written apology where this is judged appropriate. No new laws needed; it is then clear that factual content has its status reinforced in history.

In the event, we’re now subject to a morass of take-down requests that have no legal basis for support. Of the initial volume (of 10’s of 1,000’s of removal requests):

  • 31 percent of requests from the UK and Ireland related to frauds or scams
  • 20 percent to arrests or convictions for violent or serious crimes
  • 12 percent to child pornography arrests
  • 5 percent to the government and police
  • 2 percent related to celebrities

That is demonstrably not serving the public interest.

I do sincerely hope the European Justices that enacted the current process will reflect on the monster they have created, and instead change the focus to enact privacy of individuals in line with the financial and criminal record keeping edicts of publicly accessible data coded in law already. In that way, justice will be served, and we will no longer be subjected to a process outsourced to a third party who should never be put in a position of judge and jury.

That is what the courts are for, where the laws are very specific, and in which the public was full confidence.

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