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.

from Blogger

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