Should having an odd name cost someone greater judicial penalties? That’s a question behind the “right to be forgotten” debate just begun in Europe and coming to Australia.

Courts struggle with naming justice

By Bill Rowlings, CEO of Civil Liberties Australia

Civil Liberties Australia is closely examining a ruling in Europe that may open the way for people to limit what Google, news outlets and online blogs disclose about them Down Under, and so to the world.

For some years, CLA has been grappling with a case where the reporting of an Australian court decision has produced an unfair and unreasonable result because a man has a distinctive name and is a world expert in a very limited field.

We have been trying to get the justice system in Australia to address what is a national and international issue for some people who are punished disproportionately to their offending, simply because of the name their parents gave them.

Because news reports of the man’s relatively minor offence (private viewing of child images on his computer) show up in Google searches, the man has been unable to get a job anywhere in the world. After receiving a psychiatric report, a judge sentenced the man to six months weekend detention, which he completed, so he has “done his time” some years ago.

But his name and the word ‘pedophile’ in reporting his case means he cannot get a job in his field anywhere in the world. Probably neither the judge, nor the journalists writing the brief report for local news outlets and radio, had any inkling their combined efforts have effectively imposed an enormous additional financial and psychological penalty on the convicted man.

The situation is unfair because, in a similar situation, someone named John Smith would not suffer the same penalty: basically, if you have a common name the offence would be buried tens of pages down in Google search results, and not stand out like a beacon to would-be employers.

European decision provides a lead

Similar dilemmas are appearing throughout the world, and a recent decision in Europe has raised debate on the fine balancing act needed to produce a just outcome.

The highest court in the European Union decided in May 2014 that people had the right to influence what the world could learn about them through online searches, David Streitfeld has reported in the New York Times.

A search engine like Google should allow online users to be “forgotten” after a certain time by erasing links to web pages unless there are “particular reasons” not to, the Court of Justice of the European Union ruled in Luxembourg.

The case started in 2009 when Mario Costeja, a Spanish lawyer, complained that entering his name in Google led to legal notices dating to 1998 in an online version of a Spanish newspaper that detailed his debts and the forced sale of his property.

Mr Costeja said the debt issues had been resolved many years earlier and were no longer relevant. So he asked the newspaper that had published the information, La Vanguardia, to remove the notices and Google to expunge the links. When they refused, Mr Costeja complained to the Spanish Data Protection Agency that his rights to the protection of his personal data were being violated.

The Spanish authority ordered Google to remove the links in July 2010, but it did not impose any order on La Vanguardia. Google challenged the order, and the National High Court of Spain referred the case to the European court.

Right: A courtroom of the Court of Justice of the European Union in Luxembourg.
Right: A courtroom of the Court of Justice of the European Union in Luxembourg.

Under the EU court’s recent ruling, information would still exist on websites, court documents and online archives of newspapers, but people would not necessarily know it was there. The decision cannot be appealed.

The court said search engines were not simply dumb pipes, but played an active role as data “controllers,” and must be held accountable for the links they provide. Search engines could be compelled to remove links to certain pages, it said, “even when the publication in itself on those pages is lawful.”

The court also said that a search engine “as a general rule” should place the right to privacy over the right of the public to find information.

The burden of fulfilling the court’s directives will fall largely on Google, which is by far the dominant search engine in Europe. It has more than 90% of the search business in France and Germany.

Google said in a statement that the ruling was “disappointing” and that the company was “very surprised” it differed so much from a preliminary verdict last year that was largely in its favor. http://tinyurl.com/mo42nad

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