The right to be forgotten online sets a dangerous precedent for freedom of speech

Bookmark and Share Freedom of Speech | Simon Breheny
The Age 16th July, 2014

Last month an EU court invented the ''right to be forgotten''. Individuals in the 28 European Union member states can now force Google and other search engines to remove online material about them that is "inadequate, irrelevant or excessive".

The regime is an unprecedented attack on freedom of speech. What is concerning from an Australian perspective is that Communications Minister Malcolm Turnbull endorsed the right to be forgotten just two years ago.

The EU case was brought by a Spanish man who sued Google to force the search engine to remove internet search results that included 16-year-old notices in a local newspaper about property that had been repossessed to pay debts he owed at the time.

Mario Costeja Gonzalez argued that the material should be removed because it breached his right to privacy - the notices were no longer current or relevant, so they should be deleted. His victory creates a dangerous precedent that gives every European the right to delete things on the internet they don't like.

The threat of such a regime making it to Australian shores might seem small. Perhaps our judges aren't quite as activist as those who sit on the benches of the European Court of Justice. And Australia doesn't have privacy laws that pose the same threat to free speech as those in the EU.

But it's certainly worth pointing out that at least one federal member of parliament has promoted the right to be forgotten. And he just so happens to be the man that would be responsible for implementing such a regime if it was to be adopted in Australia - Malcolm Turnbull.

On October 8, 2012, Turnbull delivered the 45th Alfred Deakin Lecture. He used the speech to spruik the benefits of the right to be forgotten, saying: "Surely as we reflect on the consequences of the digital shift from a default of forgetting to one of perpetual memory we should be seeking to restore as far as possible the individual's right not simply to their privacy but to having the right to delete that which they have created in the same way as can be done in the analogue world."

It's a baffling position for Turnbull to take. This is the man who led the Coalition's charge against then communications minister Stephen Conroy's internet filter. In the same speech where Turnbull endorsed the right to be forgotten, he also took a stand against the proposal to impose a mandatory data retention regime, which would have allowed the government to spy on the online activity of every Australian.

There are a number of concerns here. The biggest is that the European Court of Justice has just given a gag to every internet user. The right to be forgotten makes every man a censor. Put simply, anyone who finds material online that they disagree with now has the power to force Google to remove it.

Following the ruling, European search engines have been inundated with requests. Some of the tens of thousands of requests include a business seeking to have negative feedback on a review website removed, convicted criminals seeking to have articles about their crimes deleted, and an individual suspended from their job wants articles about the suspension taken down.

These examples demonstrate how absurd this regime will be. A one-star customer rating on Yelp is not ideal from the business-owner's perspective but these feedback mechanisms are an essential part of 21st century life.

The early flood of requests for deletion highlights another unusual aspect of this regime - the search engines themselves are the ones that have to decide whether material is "inadequate, irrelevant or excessive". It's the ultimate in state outsourcing. Rather than judges and courts adjudicating what material gets taken down and what material stays up, it forces a private company to do the work of a proxy censor.

This raises a significant rule of law problem. It is contrary to some of the most basic principles that our legal system is built upon. Applying and enforcing the law is the role of the courts. Companies don't exist to enforce the law, and any legal system that asks them to is very seriously flawed.

It also raises a number of questions about the legal intersection between the right to free speech and the new "right" to be forgotten. For instance, subsequent court cases will have to determine the consequences of over or under-deletion by search engines.

There is an important distinction to be drawn here. Search engines already remove some websites from their search results. Other sites are simply never indexed. For example, Google routinely removes personal information and child sexual abuse imagery from its index.

Users can also make a request to Google to have certain material removed on a range of grounds. This is entirely legitimate. Policies that a company enforces voluntarily are legitimate business decisions. The right to be forgotten is fundamentally different. It's a state-backed censorship regime and an unprecedented attack on freedom of speech.

In light of the recent legal decision giving Europeans the right to be forgotten, the Abbott government should clarify its position. Does it stand with Turnbull in endorsing a digital censorship regime, or will it reject this latest threat to freedom of speech?