Privacy and Search Engines: Forgetting or Contextualizing?

Date01 June 2016
AuthorPatrick O'Callaghan,Sylvia de Mars
DOIhttp://doi.org/10.1111/j.1467-6478.2016.00751.x
Publication Date01 June 2016
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 2, JUNE 2016
ISSN: 0263-323X, pp. 257±84
Privacy and Search Engines: Forgetting or Contextualizing?
Sylvia de Mars* and Patrick O'Callaghan**
This article considers the much-criticized `right to be forgotten' in the
context of the European Court of Justice's judgment in the Google
Spain case. It defends the `right to be forgotten' as a metaphor that can
provide us with a better understanding of the particular privacy con-
cerns of the search-engine age and their interaction with the freedom
to access information, and draws on Goffman's idea of `information
games' and Nissenbaum's theory of `contextual integrity'. While sup-
porting the principles that underpin the judgment, the article rejects
the Court's binary approach of `forgetting' versus `remembering'
personal information. Instead, it argues that the EU legislator should
introduce more nuanced means of addressing modern privacy con-
cerns. By establishing two remedies ± `delisting' or `reordering',
depending on the nature of the information ± online information flows
can be adjusted to preserve both the right to privacy and the freedom to
access information in more contextually appropriate ways.
INTRODUCTION
Rarely has a decision of the Court of Justice of the European Union (ECJ)
triggered the sort of media frenzy that followed the case of Google Spain and
its purported establishment of a `right to be forgotten' on the internet.
1
257
*Newcastle Law School, Newcastle University, 21±24 Windsor Terrace,
Newcastle upon Tyne NE1 7RU, England
sylvia.de-mars@ncl.ac.uk
** School of Law, A
Âras na Laoi, University College Cork, Cork, Ireland
patrick.ocallaghan@ucc.ie
The authors thank Steve Hedley and the anonymous reviewers for their critical and
thoughtful comments.
1 Case C-131/12, Google Spain SL v. AEPD [2014] ECLI:EU:C:2014:317; see, for
instance, A. Travis and C. Arthur, `EU court backs ``right to be forgotten'': Google
must amend results on request' Guardian, 13 May 2014, at
www.theguardian.com/technology/2014/may/13/right-to-be-forgotten-eu-court-
google-search-results>.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
Charges that the decision would lead to censorship of speech featured
prominently in public discourse. Reactions of this sort are in many ways
understandable. As Bernal has argued, the terminology causes or `provokes
emotional and instinctive reactions'.
2
Our instincts tell us that the words `law'
and `forgetting' should not mix. Requiring us to forget or erase details from
public record is the sort of activity we might ordinarily associate with
totalitarian regimes. Here, as Hitchens puts it, ideology seeks to `begin the
human story over again', becoming a `cult of the now'.
3
Consider in this light
the Khmer Rouge's ruthless attempts to bring about `year zero'.
4
Thoughts
such as these generate, as Ricoeur rightly emphasizes, `uneasiness' in us.
5
However, the Court's decision in Google Spain is not as radical as it first
appears.
6
Rather, it is more nuanced, focusing on the special status of search
engines as a primary means of accessing information in the digital age.
Understood in this way, the Court's position is not simply that individuals
should have a licence to erase information from the internet at will. Rather,
the decision seeks to ensure that when interests in forgetting/being forgotten
are at stake, certain types of information should not be so easily and readily
accessible. This does not mean that the information cannot be accessed in
other ways; rather, that in the absence of a public interest, such information
should not be instantly available by typing a person's name into a search
engine.
7
In this article, we aim to explain and justify the principles that lie behind
the Court's decision in Google Spain. After detailing the judgment, we argue
that the `right to be forgotten' is a useful metaphor as it helps us `make sense'
of our experiences of technological development and the associated social
change. Indeed, there are two reasons in particular why the `right' is so
helpful. First, the distinct privacy challenges of the twenty-first century are
revealed once we contrast the `right' with another metaphor: digital tech-
nology's capacity for `perfect memory'. Second, because the terminology of a
`right to be forgotten' is instinctively contentious, it forces us to consider the
implications of data erasure for the freedom to access information.
258
2 P. Bernal, `A Right to Delete' (2011) 2 European J. of Law and Technology, at
.
3 C. Hitchens, Arguably (2011) 162.
4 See, further, F. Ponchaud, Cambodia: Year Zero (1978).
5 P. Ricoeur, Memory, History, Forgetting (2004) 501.
6 See, also, O. Lynskey, `Control over Personal Data in a Digital Age: Google Spain v
AEPD and Mario Costeja Gonza
Âlez' (2015) 78 Modern Law Rev. 522, at 528; A.
Roughton, `Google and the ``right to be forgotten'' ± setting the record straight'
(2014) 14(8) Privacy & Data Protection 6; J. Jones, `Control-alter-delete: the ``right
to be forgotten''' (2014) 36 European Intellectual Property Rev. 595.
7 See P. Korenhof, J. Ausloos, I. Szekely, M. Ambrose, G. Sartor, and R. Leenes,
`Timing the Right to Be Forgotten: A Study into ``Time'' as a Factor in Deciding
About Retention or Erasure of Data' in Reforming European Data Protection Law,
eds. S. Gutwirth, R. Leenes, and P. de Hert (2015) 171, at 183.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

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