I thought that the judgment of the Court of Justice of the European Union on the Data Retention Directive was remarkable for the amount of interest it generated. Not only were client newsletters issued worldwide but there was a stream of high quality academic writing on various blogs within days of the judgment. That reaction to the Data Retention Directive has been dwarfed by the explosive reaction to the Google Spain judgment. The quality of the opinion that has been published within what is just a short period has perhaps been uneven – there have been some sensationalist accounts in the mainstream media and some intemperate blog posts – but a lot of what has already appeared on the web will, I think, stand as worthwhile writing for some time to come. Moreover, it is quite a sensational judgment and far from temperate in effect so even a bit of sensationalism and intemperate language is forgivable.
I am very happy with our very prompt coverage and delighted that Professor Steve Peers allowed us to publish his work, which he produced within hours of the judgment being published. That was to be our coverage of the case in the June/July issue of the magazine – a neat account and balanced comment: ‘job done’. But I find myself tweeting and retweeting no end of high quality comment from other sources and some of that makes points that are genuinely original. For example, the ICO weighed in last week, and clearly {its view: http://iconewsblog.wordpress.com/2014/05/20/four-things-weve-learned-from-the-eu-google-judgment/} matters and is, for UK lawyers, part of the story.
And some of the more alternative comment has been fascinating too – I am quite fond of Donal Blaney’s {dismissal of the whole issue from ‘the land of the free’: http://www.breitbart.com/Breitbart-London/2014/05/18/google-is-safe-and-your-privacy-means-nothing}; he may even be right.
While Julia Powles has produced {an indispensable guide to academic comment on the issue: http://www.cambridge-code.org/googlespain.html} which I most earnestly commend, she has not catalogued some of the practitioner comment, which is equally fascinating for its practical input. That compilation also understandably omits some of the more colourful quotes (‘Americans will find their searches bowdlerized by prissy European sensibilities. We’ll be the big losers. The big winners will be French ministers who want the right to have their last mistress forgotten.’: Stewart Baker, former assistant secretary for policy at the U.S. Department of Homeland Security – who clearly knows very little about French mores and politics) and the occasional cry of near despair like {this one from Neil Cameron: http://www.nccg.it/neils-blog-10-google-right-time-ecj-hopelessly-wrong/l}.
So I am contemplating devoting many pages of the upcoming issue of Computers & Law to both the report and comment from Steve Peers and my favourite views from others. I will be seeking permission to publish excerpts from many blog posts and newsletters but, on the assumption that our readership will know the facts, I don’t need further accounts of the case just short sharp impact assessments. If you want to contribute such material (perhaps 30 -100 words) then I would be delighted to hear from you. It would be nice to hear from Google too. And I would also be grateful for a few pointers to views on the outer reaches of the Net that I might have missed and which you found of real value. Since the deadline for the next issue is almost upon us, any suggestions or contributions need to be submitted very speedily to lseastham@aol.com.
For my part, the more I think about this judgment, the more disillusioned I get. I wish that Mario Costeja González had battled with the problem of the high ranking of the report on his former financial difficulties by sponsored bungee jumping for charity, dressing as a pirate every day or dating Miley Cyrus. Then that old report would have slipped to page two of any search results (which nobody reads) and we would all be happier. It seems that, like so much wrong with modern life, it is partly the fault of Miley Cyrus.
I am less than convinced by the claims that the impact is much less than people fear – it is said that the prospective politician will not be able to have the slate wiped clean. But surely, at the prospective stage, that is exactly what he or she will be able to do. And, if the ‘right to be forgotten’ is a bit short on guidelines, it is a jungle compared to the desert that is the need to be remembered again.
The two major coping mechanisms which have been mooted – Google making a judgment based on an algorithm or some sort of tribunal – both fill me with dread. The former will surely lean heavily in favour of inappropriate deletion of links because Google has no financial stake in having a more comprehensive result than its rivals; there are no real rivals – a fact which may well underpin the result of the case. The latter is probably unaffordable, although clearly some self-financing and ODR might help, and certainly is low on my list of priorities for public expenditure.
Somebody, somehow needs to get this issue back in court – perhaps before the Strasbourg court – and quickly. Perhaps we should have a whip round. We might hope to see a more sensible outcome next time.
