Arising from the pre-digital paradigm are two concepts that had important implications for privacy. Their continued validity as a foundation for privacy protection has been challenged by the digital paradigm. The terms are practical and partial obscurity which are both descriptive of information accessibility and recollection in the pre-digital paradigm and of a challenge imposed by the digital paradigm, especially for privacy. The terms, as will become apparent, are interrelated.
Practical obscurity refers to the quality of availability of information which may be of a private or public nature[1]. Such information is usually in hard copy format, may be indexed, is in a central location or locations, is frequently location-dependent in that the information that is in a particular location will refer only to the particular area served by that location, requires interaction with officials or bureaucrats to locate the information and, finally, in terms of accessing the information, requires some knowledge of the particular file within which the information source lies. Practical obscurity means that information is not indexed on key words or key concepts but generally is indexed on the basis of individual files or in relation to a named individual or named location. Thus, it is necessary to have some prior knowledge of information to enable a search for the appropriate file to be made.
Partial obscurity addresses information of a private nature which may earlier have been in the public arena, either in a newspaper, television or radio broadcast or some other form of mass media communication whereby the information communicated is, at a later date, recalled in part but where, as the result of the inability of memory to retain all the detail of all of the information that has been received by an individual, has become subsumed. Thus, a broad sketch of the information renders the details obscure, only leaving the major heads of the information available in memory, hence the term partial obscurity. To recover particulars of the information will require resort to film, video, radio or newspaper archives, thus bringing into play the concepts of practical obscurity. Partial obscurity may enable information which is subject to practical obscurity to be obtained more readily because some of the informational references enabling the location of the practically obscure information can be provided.
The Digital Paradigm and Digital Information Technologies challenge these concepts. I have written elsewhere about the nature of the underlying properties or qualities of the digital medium that sits beneath the content or the “message”. Peter Winn has made the comment “When the same rules that have been worked out for the world of paper records are applied to electronic records, the result does not preserve the balance worked out between the competing policies in the world of paper records, but dramatically alters that balance.”[2]
A property present in digital technologies and very relevant to this discussion is that of searchability. Digital systems allow the retrieval of information with a search utility that can take place “on the fly” and may produce results that are more comprehensive than a mere index. The level of analysis that may be undertaken may be deeper than mere information drawn from the text itself. Writing styles and the use of language or “stock phrases” may be undertaken, thus allowing a more penetrating and efficient analysis of the text than was possible in print.
The most successful search engine is Google which has been available since 1998. So pervasive and popular is Google’s presence that modern English has introduced the verb “to Google” which means “To search for information about (a person or thing) using the Google search engine” or “To use the Google search engine to find information on the Internet”.[3] The ability to locate information using search engines returns us to the print based properties of fixity and preservation and also enhances the digital property of “the document that does not die”
A further property presented by digital systems is that of accessibilty. If one has the necessary equipment – a computer, modem\router and an internet connection – information is accessible to an extent not possible in the pre-digital environment. In that earlier paradigm, information was located across a number of separate media. Some had the preservative quality of print. Some, such as television or radio, required personal attendance at a set time. In some cases information may be located in a central repository like a library or archive. These are aspects of partial and practical obscurity
The Internet and convergence reverses the pre-digital activity of information seeking to one of information obtaining. The inquirer need not leave his or her home or office and go to another location where the information may be. The information is delivered via the Internet. As a result of this, with the exception of the time spent locating the information via Google, more time can be spent considering, analysing or following up the information. Although this may be viewed as an aspect of information dissemination, the means of access is revolutionarily different.
Associated with this characteristic of informational activity is the way in which the Internet enhances the immediacy of information. Not only is the inquirer no longer required to leave his or her home of place of work but the information can be delivered at a speed that is limited only by the download speed of an internet connection. Thus information which might have involved a trip to a library, a search through index cards and a perusal of a number of books or articles before the information sought was obtained, now, by means of the Internet may take a few keystrokes and mouse clicks and a few seconds for the information to be presented on screen
This enhances our expectations about the access to and availability of information. We expect the information to be available. If Google can’t locate it, it probably doesn’t exist on-line. If the information is available it should be presented to us in seconds. Although material sought from Wikipedia may be information rich, one of the most common complaints about accessability is the time that it takes to download onto a user’s computer. Yet in the predigital age a multi-contributing information resource (an encyclopedia) could only be located at a library and the time in accessing that information could be measured in hours depending upon the location of the library and the efficiency of the transport system used.
Associated with accessibility of information is the fact that it can be preserved by the user. The video file can be downloaded. The image or the text can be copied. Although this has copyright implications, substantial quantities of content are copied and are preserved by users, and frequently may be employed for other purposes such as inclusion in projects or assignments or academic papers. The “cut and paste” capabilities of digital systems are well known and frequently employed and are one of the significant consequences of information accessibility that the Internet allows.
The “Google Spain” Decision and the “Right to Be Forgotten”
The decision of the European Court of Justice in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, has the potential to significantly change the informational landscape enabled by digital technologies. I do not intend to analyse the entire decision but rather focus on one aspect of it – the discussion about the so-called “right to be forgotten.” The restrictions placed on Google and other search engines as opposed to the provider of the particular content demonstrates a significant inconsistency of approach that is concerning.
The complaint by Mr Gonzales was this. When an internet user entered Mr Costeja González’s name in the Google search engine of he or she would obtain links to two pages of the La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively In those publications was an announcement mentioning Mr Costeja González’s name related to a real-estate auction connected with attachment proceedings for the recovery of social security debts.
Mr González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data.
Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.
The effect of the decision is that the Court was prepared to allow the particular information – the La Vanguardia report – to remain. The Court specifically did not require that material be removed even although the argument advanced in respect of the claim against Google was essentially the same – the attachment proceedings had been fully resolved for a number of years and that reference to them was now entirely irrelevant. What the Court did was to make it very difficult if not almost impossible for a person to locate the information with ease.
The Court’s exploration of the “right to be forgotten” was collateral to its main analysis about privacy, yet the development of the “right to be forgotten” section was as an aspect of privacy – a form of gloss on fundamental privacy principles. The issue was framed in this way. Should the various statutory and directive provisions be interpreted as enabling Mr Gonzales to require Google to remove, from the list of results displayed following a search made for his name, links to web pages published lawfully by third parties and containing true information relating to him, on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain time? It was argued that the “right to be forgotten” was an element of Mr Gonzales’ privacy rights which overrode the legitimate interests of the operator of the search engine and the general interest in freedom of information.
The Court observed that even initially lawful processing of accurate information may, in the course of time, become incompatible with the privacy directive where that information is no longer necessary in the light of the purposes for which it was originally collected or processed. That is so in particular where the purposes appear to be inadequate, irrelevant or no longer as relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.
What the Court is saying is that notwithstanding that information may be accurate or true, it may no longer be sufficiently relevant and as a result be transformed into information which is incompatible with European privacy principles. The original reasons for the collection of the data may, at a later date, no longer pertain. It follows from this that individual privacy requirements may override any public interest that may have been relevant at the time that the information was collected.
In considering requests to remove links it was important to consider whether a data subject like Mr Gonzales had a right that the information relating to him personally should, at a later point in time, no longer be linked to his name by a list of results displayed following a search based on his name. In this connection, the issue of whether or not the information may be prejudicial to the “data subject” need not be considered. The information may be quite neutral in terms of effect. The criterion appears to be one of relevance at a later date.
Furthermore the privacy rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.
One has to wonder about the use of language in this part of the decision. Certainly, the decision is couched in a very formalised and somewhat convoluted style that one would associate with a bureaucrat rather than a judge articulating reasons for a decision. But what does the Court mean when it says “as a rule”? Does it have the vernacular meaning of “usually” or does it mean what it says – that the rule is that individual privacy rights override economic interests of the search engine operator and of the general public in being able to locate information. If the latter interpretation is correct that is a very wide ranging rule indeed.
However, the Court continued, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.
Thus if a person has a public profile, for example in the field of politics, business or entertainment, there may be a higher public interest in having access to information.
Finally the Court looked at the particular circumstances of Mr Gonzales. The information reflected upon Mr Gonzales private life. Its initial publication was some 16 years ago. Presumably the fact of attachment proceedings and a real estate auction for the recovery of social security debts was no longer relevant within the context of Mr Gonzales’ life at the time of the complaint. Thus the Court held that Mr Gonzales had established a right that that information should no longer be linked to his name by means of such a list.
“Accordingly, since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the Gonzales may, require those links to be removed from the list of results.”
There is an interesting comment in this final passage. The ECJ decision is on matters of principle. It defines tests which the referring Court should apply. Thus the referring Court still has to consider on the facts whether there are particular reasons that may substantiate a preponderant public interest in the information, although the ECJ stated that it did not consider such facts to be present.
Matters Arising
There are a number of issues that arise from this decision. The reference to the “right to be forgotten” is made at an early stage in the discussion but the use of the phrase is not continued. It is developed as an aspect of privacy within the context of the continued use of data acquired for a relevant purpose at one point in time, but the relevance of which may not be so crucial at a later point in time. One of the fundamental themes underlying most privacy laws is that of collection and retention of data for a particular purpose. The ECJ has introduced an element of temporal relevance into that theme.
A second issue restates what I said before. The information about the attachment proceedings and real estate sale which Mr Gonzales faced in 1998 was still “at large” on the Internet. In the interests of a consistent approach, an order should have been made taking that information down. It was that information that was Mr Gonzales’ concern. Google was a data processor that made it easy to access that information. So the reference may not appear in a Google search, but the underlying and now “irrelevant” information still remains.
A third issue relates to access to historical information and to primary data. Historians value primary data. Letters, manuscripts, records, reports from times gone by allow us to reconstruct the social setting within which people carried out their daily lives and against which the great events of the powerful and the policy makers took place. One only has to attempt to a research project covering a period say four hundred years ago to understand the huge problems that may be encountered as a result of gaps in information retained largely if not exclusively in manuscript form, most of which is unindexed. A search engine such as Google aids in the retrieval of relevant information. And it is a fact that social historians relay on the “stories” of individuals to illustrate a point or justify an hypothesis. The removal of references to these stories, or the primary data itself will be a sad loss to historians and social science researchers. What is concerning is that it is the “data subject” that is going to determine which the historical archive will contain – at least from an indexing perspective.
A fourth issue presents something of a conundrum. Imagine that A had information published about him 20 years ago regarding certain business activities that may have been controversial. Assume that 20 years later A has put all that behind him and is a respected member of the community and his activities in the past bear no relevance to his present circumstances. Conceivably, following the approach of the ECJ, he might require Google to remove search results to those events from queries on his name. Now assume a year or so later that A once again gets involved in a controversial business activity. Searches on his name would reveal the current controversy, but not the earlier one. His earlier activities would remain under a shroud – at least as far as Google searches are concerned. Yet it could be validly argued that his earlier activities are very relevant in light of his subsequent actions. How do we get that information restored to the Google search results? Does a news media organisation which has its own information resources and thus may have some “institutional memory” of the earlier event go to Google and request restoration of the earlier results?
The example I have given demonstrates how relevance may be a dynamic beast and may be a rather uncertain basis for something as elevated as a right and certainly as a basis for allowing a removal of results from a search engine as a collateral element of a privacy right.
Another interesting conundrum is presented for Mr Gonzales himself. By instituting proceedings he has highlighted the very problem that he wished to have removed from the search results. To make it worse for Mr Gonzales and his desire for the information of his 1998 activities to remain private, the decision of the ECJ has been the subject of wide ranging international comment on the decision. The ECJ makes reference to his earlier difficulties, and given that the timing of those difficulties is a major consideration in the Court’s assessment of relevance, perhaps those activities have taken on a new and striking relevance in the context of the ECJ’s decision. If Mr Gonzales wanted his name and affairs to remain difficult to find his efforts to do so have had the opposite effect, and perhaps his business problems in 1998 have achieved a new and striking relevance in the context of the ECJ’s decision which would eliminate any privacy interest he might have had but for the case.
Conclusion
But there are other aspects of the decision that are more fundamental for the communication of information and the rights to receive and impart information which are aspects of freedom of expression. What the decision does is that it restores the pre-digital concepts of partial and practical obscurity. The right to be forgotten will only be countered with the ability to be remembered, and no less a person than Sir Edward Coke in 1600 described memory as “slippery”. One’s recollection of a person or an event may modify over a period of time. The particular details of an event congeal into a generalised recollection. Often the absence of detail will result in a misinterpretation of the event.
Perhaps the most gloomy observation about the decision is its potential to emasculate the promise of the Internet and one of its greatest strengths – searchability of information – based upon privacy premises that were developed in the pre-Internet age, and where privacy concerns involved the spectre of totalitarian state mass data collection on every citizen. In many respects the Internet presents a different scenario involving the gathering and availability of data frequently provided by the “data subject” and the properties and the qualities of digital technologies have remoulded our approaches to information and our expectations of it. The values underpinning pre-digital privacy expectations have undergone something of a shift in the “Information Age” although there are occasional outraged outbursts at incidence of state sponsored mass data gathering exploits. One wonders whether the ECJ is tenaciously hanging on to pre-digital paradigm data principles, taking us back to a pre-digital model or practical and partial obscurity in the hope that it will prevail for the future. Or perhaps in the new Information Age we need to think again about the nature of privacy in light of the underlying qualities and properties of the Digital Paradigm.
[1] The term “practical obscurity” was used in the case of US Department of Justice v Reporters Committee for Freedom of the Press. 489 US 749 (1989)
[2] Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, (2004)79 WASH. L. REV. 307, 315
[3] Oxford English Dictionary
The IT Countrey Justice 