Jennifer Lawrence and the right to be forgotten

Privacy is back in the news because some celebrities, such as the talented Jennifer Lawrence, have had compromising photographs leaked and the police have been accessing a journalist's phone records.

Can the latest scandals throw any light on the mislabeled and erroneously reported Court of Justice of the European Union (CJEU) Google "right to be forgotten" decision?

Well perhaps, at least in the case of the leaked photos. Some of our US cousins, for example, find it hard to understand the ruling and consider it fundamentally incompatible with US First Amendment guarantees for freedom of expression.What the hell do those regressive Europeans think they are doing?

These same horror-stricken people, however, do see that a movie star, who has embarrassing photographs copied or stolen and leaked around the world, should have some means of redress, recovering those photos and/or suppressing their distribution. Likewise the victims of revenge porn or blackmail as in AMP v persons unknown.

It's not the same, but did Mario Costeja González have the right to redress in relation to Google's prominent display in search results of a link to a news article about historical financial difficulties?

Lilian Edwards did a terrific job explaining that EU law requires that yes he should, in the process nailing some of the key myths circulating about the decision.

Having been completely neglectful in not yet analysing the case here, I've been prompted to some brief thoughts by the latest round of stories. Disclaimer: This doesn't constitute a proper analysis (for which, sadly, I have little time at the moment). In any case...

Firstly, everybody makes mistakes and suffers embarrassment.

Fear of same actually constrains some people so much they neglect to do or say anything that in any way might rebound on them or be used as a metaphoric stick to beat them with by the communities within which they exist. This can be incredibly debilitating.

Historically, however, society has enabled "recovery" from mistakes or embarrassment through collective fading and displacement of memories of those events.

We have now, though, spent the best part of the last 30 years enabling, actively and/or passively, the building and operation of a communications mass surveillance infrastructure and 'permanent' digital memory store, unparalleled in the history of the human race. We've been happy to revel in the benefits of these technologies as have governments and large economic actors like Google. But as John Naughton so eloquently puts it, our " indolence is a shocking case study of what complacent ignorance can do to a democracy, and we are now living with the consequences of it."

We are, nevertheless, where we are and it presents us with a complex mess to sort out.  So on the Google case specifically, it's worth at least asking a few questions.

Supposing Google or other economic agents or governments prominently and permanently tags/connects a past mistake or embarrassment to a person's name, so that we cannot "recover" through fading or displacement of collective memory. Supposing also that these agents prominently flag these mistakes through headline search results that, in our world of short attention spans, means we can never escape them. Let's face it we are a society quick to condemn on the basis of flimsy, minimal or non-existent evidence and occasionally don't even bother to click on the link, merely judge by the headline...

Is this a problem?

1. for the individual?
2. for the individual's family, friends, community?
3. for society generally?
4. for Google and other economic agents as collectors, processors and controllers of the personal data at issue?
5. for government and the courts?

I'd answer 'yes' to each of these to a variety of degrees for a variety of reasons. If you answer yes to any of them we have a significant mess that requires sorting out. The part of that mess the CJEU attempted to target in the very narrowly tailored Google Spain v González decision was, on balance,  a tiny step in the right direction.

Even Google have got over their original hissy fit over the decision and are getting on with it. They've stopped 'loudly' indicating results were being censored and anyone wanting to see them could click on a convenient link, provided on the search results page to the US version of Google.

The decision itself requires only the link from the name of the person formally requesting a takedown to the page that name appears in be removed. The webpage with the information about the individual's past remains in place. Someone with semi coherent search skills can still easily find it. Lazy name searches, for those subjects who successfully request it, just don't now lead directly to the equivalent of a digital loudhailer proclaiming the individual, like everyone, has some mistakes in their past that society should accept are spent.

The ruling does not constitute a general 'right to be forgotten' which might itself present all kinds of challenges. The one major problem with it is that it delegates a public interest and fundamental rights decision to a private economic actor, Google in this instance, that should probably sit within the remit of a court, tribunal or at least some other quasi-judicial public authority.

And finally, for the 1st Amendment absolutists, how free to speak is the sensitive man/woman/child terrified that any misspoken comment, mistake or embarrassing situation will be blown up and held against them for the rest of their natural lives? This, given our out of control mass surveillance society, is a 1st amendment issue too, just not necessarily in the way you suppose.

Update: John Naughton's exposé of the ugly side of human nature "celebgate" reveals is essential reading.