Opinion: Google right this time – ECJ hopelessly wrong

by 28 May 2014
Ironically, an almost perfect exposition of the true state of the law – where Google wins – and with many mature reflections of general principals, including the distinction between the responsibilities of data publishers and web search engines, is to be found in the excellent Opinion of the ECJ Advocate General, Niilo Jääskinen (a Finnish lawyer) of June last year, to be found here.
What a shame that the Court chose to differ from his jurisprudential wisdom in their fatally flawed judgment of 13 May 2014, to be found here. They are wrong; everybody but them knows they are wrong, and Niilo Jääskinen at some point is going to have to learn not to say, “I told you so”.

Obviously neither Mario Gonzalez nor the ECJ has heard of the Streisand Effect. The Streisand Effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. It is named after the incident when Barbra Streisand attempted to suppress photographs of her residence in Malibu, California, inadvertently generating massive further publicity.

To see this principal in action; despite the fact that Mario Costeja Gonzalez has actually won his action and obviously wishes to return to the obscurity he so richly deserves; try Googling the words ‘Mario Costeja Gonzalez’. Doh.

The Streisand Effect is closely related – for me and an earlier generation – to the Haldeman Principle; as Bob Haldeman said in one of his conversations with John Dean about Watergate cover-up: “just remember that once the toothpaste is out of the tube, it is going to be very tough to get it back in.”

Some things just can’t be undone, and this is one of them. How on earth is Google (and in due course every other search engine) actually going to remove the specific links that he complains about in their system, and not others, when it has not been removed from the source Web sites? To even contemplate it they would have to employ an army of de-Googlers, frantically and manually removing links for every claimant with a past they would rather forget. This could be hundreds of thousands of people, or more. It is simply not practicable.

Furthermore, and this is even more important, some things just shouldn’t be undone – and history, otherwise known as the truth, is one of them – this should be sacrosanct. Protecting the private rights of miscreants, or people who have just embarrassed themselves, taking precedence over the right to freedom of accurate information for the rest of the human race?

Give me strength…

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