Wednesday, December 14, 2016

Reading list: why search engines shouldn't implement the right to be forgotten

Note structural similarity to arguments about copyright takedown notices.


European privacy law currently implements the ‘right to be forgotten’ by positioning commercial search engine operators as the initial site of decision-making regarding its exercise. This is problematic for a number of reasons. First, there are a number of structural flaws in the mode of this decision-making that make it unclear that search engines are capable of (or interested in) incorporating a robust account of competing interests. Second, right to be forgotten requests are not susceptible to the same kind of algorithmic techniques search engines use to deal with other kinds of removal requests, meaning large numbers of decisions must be made rapidly and primarily by staff lacking formal legal qualifications. When compounded with the possibility of heavy penalties for failure to comply with the right under European law, these two issues suggest there is a significant potential for bias toward deletion rather than preservation of borderline links. A third problem is that the simple online forms provided by search engines for European data users making a deletion request mask a complicated legal analysis, meaning those who properly structure their requests in an appropriately technical and legal manner may have a higher chance of success in their claims. This threatens to open up a new digital divide along the axis of reputation. Finally, the massive compliance costs associated with this new right may serve as a form of anti-competitive lock-in, preventing the emergence of innovative new companies in ‘search’. In sum, if the right to be forgotten is to have real meaning in European law, search engines are not the correct vector for its implementation.

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