EU Commissioner Says 'Right To Be Forgotten' Compliance Will Be Just As 'Easy' As Fighting Piracy

Free Speech

from the either-way,-it-will-all-be-Google's-fault dept

This is interesting. Just a couple of days after Geoff Taylor (the head of BPI — the UK’s RIAA) declared that Google’s acquiescence to the “right to be forgotten” proved that it could do more to fight piracy, EU commissioner Viviane Reding delivered a statement that approached the subject from a wholly opposite direction.

If Google can handle the millions of requests it gets to take down content that infringes copyright, it should be able to handle the few requests it gets to enforce the EU’s “right to be forgotten”, according to Viviane Reding, the European commissioner for justice, fundamental rights and citizenship.

Speaking on BBC Radio 5 Live, Reding said that “there are relatively little numbers of requests” to take down information owing to the newly granted right to be forgotten, but that there are “some million requests to take down material because of copyright questions.”

“So you see,” Reding continued, “this is a small thing as compared to the copyright things. It is possible to handle the copyright question, so it should also be possible to handle the takedown requests on personal data questions.”

This opposite take doesn’t make it any less wrong than Taylor’s extrapolations. There’s nothing simple about managing millions of takedown requests and there’s nothing simple about post facto reputation management. Both rely heavily on the requester’s statements being true.

The DMCA takedown at least contains the notification that filing a false request is the equivalent of perjury (not that this part is ever strictly enforced…). The EU webform simply asks the requester to agree that the above declarations are true. There’s no real legal weight behind the form at this point, so the only deterrent is that each submission must be accompanied by a copy of the submitter’s legal identification.

As we all know, there are plenty of bogus DMCA takedowns issued every year. Even otherwise legitimate takedowns can be littered with bogus URLs, thanks to many rights protection companies’ decision automate the process. (And, apparently, save money by releasing takedowns without vetting them…)

So, while the number of “right to be forgotten” requests may be incredibly small as compared to the millions of piracy-related URLs submitted every day, the same problems will still plague both. Because the processes don’t lend themselves to human curation thanks to sheer volume, legitimate content will still be de-listed and infringing/unwanted content will still remain just a search away.

Reding is correct about it being “simple” — at least in regards to those submitting requests. Both operate via automated webforms, making the barrier to entry low enough that abuse is inevitable. Raising that bar a little would only result in citizens and rights holders complaining that Google has made the job of taking down infringing content/clearing one’s name too difficult to be useful.

Both methods can be easily utilized but neither truly solves the problem. Both are games of whac-a-mole. Just as certainly as infringing content will show up somewhere else when sites are shut down and links removed, so will the negative content that European citizens are asking to have de-listed. As Google’s webform notes, “we may inform webmaster(s) whose content is removed from our search results as a result of your complaint.”

This stipulation pretty much guarantees the content will be reposted/rehosted. Detractors may complain that Google is purposefully inviting this sort of behavior and that notifying webmasters makes the requesters look like the “bad guys.” (We’ve seen this complaint before in terms of YouTube notification screens — both from musicians and GEMA itself. Both feel it’s “unfair” that viewers are notified about who requested the takedown.) But this needs to be in place to provide for any defense of the disputed content. You can’t just hand out one-way “rights.”

Adding to the problem is the fact that there may not even be a specific party who can file a counterclaim. Or even have that option. The EU’s decision specifically states the a person’s “right to privacy” outweighs the public’s right to know, which seems to indicate that filing a counterclaim may not even be an option if the takedown request is approved. This is vastly different from DMCA takedown notices, which state who’s filing the claim and who the takedown request targets. If the claim is disputed, there are established routes to challenge the claim. The way the “right to be forgotten” is currently set up offers no clear avenue for disputes, nor any guarantee that those who have content de-listed will be notified. (Note the word “may” in Google’s statement above.)

Reding sees this as an easy win simply because the number of “forget me” requests will always be outnumbered by infringing content takedown requests. But both expect Google to simply accept every request as undisputed fact. Rights holders have been complaining for years that Google doesn’t do “enough” to combat piracy, even when it’s de-listing millions of URLs every month. These complaints will inevitably be echoed by users of the new webform and proponents of this law in the near future. Perception is the new reality. If it’s not fast enough or thorough enough or too many claims are disputed then all blame will be routed towards Google, even if it’s the Commission’s failure to comprehend the impossibility of what it’s demanding. The internet is by no means finite, but Google’s resources — and reach — are.

Reding is correct about one similarity: the pursuit of the “right to be forgotten” will ultimately be as futile as fighting piracy via takedown requests.

Filed Under: censorship, copyright, dmca, free speech, piracy, right to be forgotten, search engines, takedowns, viviane reding