Wikipedia’s Battle on Right to Be Forgotten

Leaders of the online search engines Google and Wikipedia are defying the EU’s attempt to give digital citizens the right to be forgotten ‘le droit a l’oubli’, and working to overturn it. They are taking the fight to Europe, with a travelling Advisory Council touring the continent during autumn 2014. Wikipedia founder Jimmy Wales is a member of the Advisory Council, and he is ready for battle. The American entrepreneur – who created Wikipedia using profits from his pornography website BOMIS – applauds the British government’s new law which was rushed through Parliament with all-party support on the last day before MPs departed for the summer holiday. This new law known as DRIP (Digital Retention Investigatory Powers Act) is framed as a direct response to the ruling from the European Court of Justice which said Google and other search engines must allow individuals to delete links to irrelevant or out-of-date information about themselves held on websites or in online databases. Its aim is to “Make provision, in consequence of a declaration of invalidity made by the Court of Justice of the European Union in relation to Directive 2006/24/EC, about the retention of certain communications data; to amend the grounds for issuing interception warrants.” In other words the UK will continue to intercept communications and store data just as it did before the ECJ ruling.

This judgement came about because a Spanish man mounted a legal battle to get Google Spain to remove links to out-of-date online references which shows he once had his property repossessed because of debts. The court rules that in cases like this where the information is ‘inaccurate, inadequate, irrelevant or excessive’ the citizen has the right to require search engines to take down the links. There is a handy guide to the new rules. However the ECJ judgement explicitly states that the right to be forgotten is not absolute and will be decided on a case-by-case basis. Nothing so thoughtful and balanced comes from the Wiki leaders.

When I asked them at a London news conference whether they had anything in their past lives that they would prefer to remove from the public record, they all said that they might have regrets but they would not remove data. “Don’t censor history” was the message from Jimmy Wales and Lila Tretikov, CEO of Wikimedia compares the right to be forgotten to an attack on a library. “It’s like going to the library and asking the library to take the name of a book out of the index, but without removing the book” she says, explaining one of the inconsistencies of the new ‘human right’. For even if dodgy data is ‘de-linked’ in all the search engines, it still remains online – it just does not show up in searches.

Wales robustly defends Wikipedia as the best way to correct and update personal data online, saying that anyone who is misrepresented in a wiki can ask to have the post removed – or simply create a new post stating the facts more accurately and steering users away from the wrong version. In this way he believe the wisdom of crowds will prevail, and the Wikipedia community will police itself without any need for courts, lawyers or what he terms ‘censorship’. Citing the First Amendment to the American Constitution (the right to free speech) as his philosophical base Jimmy Wales also points out the practical pitfalls of requesting data be deleted. He reminds the waiting media at a London press conference of the unfortunate experience of Hollywood legend Barbra Streisand (the Streisand Effect occurs when a public figure complains about inaccurate reporting and the complaint has the effect of increasing the media interest and repeating the inaccuracies over and over again).

Ranged against Wales in this debate is British Labour MEP Claude Moraes. He believes Google, Wikipedia and other search engines are opposing the right to be forgotten because it costs them money to do the deletions. “The big search engines like Google make huge amounts of money and where they do have processes in place like at the moment there is a take-down mechanism to remove items for copyright infringement – that is expensive relative to the very easy way they make money by being a search engine in their normal practice.”

Moraes chaired the EU’s committee of inquiry in response to the revelations of widespread mass surveillance of innocent citizens by American and British spies, uncovered by the National Security Agency whistleblower Edward Snowden. He says he is disappointed that his own national government has brought in the new DRIP law deliberately to thwart the European Court of Justice. Fellow dissenters within the British Parliament, led by Conservative David Davis and Labour’s Tom Watson, have given notice that they intend to get the DRIP thrown out by a judicial review. They are backed by the human rights advocacy group Liberty. At the core of these debates is the notion – explored in full in our report ‘Can we make the digital world ethical?’ – that each individual citizen owns his or her own data and can determine what happens to it and how it is used. Copyright is another example where citizen’s rights over what they have created are regularly flouted online. Wikipedia has even refused to remove a picture of a monkey which British photographer David Slater claimed is his work. The monkey clicked the shutter itself, taking a ‘selfie’ or self-portrait.

So should we legislate for copyright fees for monkeys? Human rights for robots? Whatever next? Watch this space…

Jane Whyatt


Dates for Google and Wikipedia’s Advisory
Council roadshows in Europe 2014

September 25 in Paris, France
September 30 in Warsaw, Poland
October 14 in Berlin, Germany
October 16 in London, UK
November 4 in Brussels, Belgium