The unforgettable story of the seizure to the defaulter Mario Costeja González that happened in 1998
Spanish to English translation: @misojosxelmundo.
On January 19th, 1998, the newspaper La Vanguardia published (in its 23rd page) a regular auction listing from the Labour Ministry with all the property seized by the Social Security Department, where there were almost twenty properties with their corresponding location, description and owner. Among them, a 90 m2 jointly owned property in San Feliú de Llobregat, Catalonia, Spain, whose owners were Mario Costeja González and wife.
Ten years later, the same paper pounced on the titanic project —the first of its kind in Spanish-speaking media— of digitalizing all its library, including number 1 (published in 1881) and all its numbers until the present. The whole material would be available for free on the Internet (PDF archives), allowing searchings by date and words. During its first month on-line, in 2008, the library was visited by more than four million people. Not only humans visited this good and bad news documentary archive for a period of 127 years but a legion of bots who must have found themselves on the verge of collapse when they bumped into such a great quantity of indexing data. Internet bots or web crawlers are software applications that register the information from the web automatically. Google bot is one of the most eminent and it quickly will have gulped the data clutter from La Vanguardia’s archive, in a way its historical contents were soon visible among Google’s results.
By that time, Mr. Costeja González was divorced, ha had payed his debt and we can imagine that in a moment of procrastination, he decided to do what we all do once in a while, an “ego search”: he wrote his name and clicked “search” in Google. It could have been due to the lack of information about himself on the Internet or because there was not a single homonym or maybe due to the high pagerank, but the result for the “Mario + Costeja + González” string showed the link to that La Vanguardia’s 23rd page among the first results. Without any doubt, it was such an excellent work the search-engine did that from all the immeasurable vastness of data scattered throughout the web, in milliseconds it delivered a completely reliable and relevant reference to the object requested search from legitimate and publicly accessible information.
It was so disturbing for this lawyer and judicial calligrapher expert —company consultant by that time— that he went to “La Vanguardia Ediciones S.L.” and requested removal, making use of his right to object the personal processing data, in a country with a strong data protection policies as it is Spain. Of course, La Vanguardia rejected to suppress the information that had been published lawfully, from a State agency that at the same time obeyed the legislation. As he could not act against the newspaper, he aimed at the messenger.
Even though Google is as responsible for the publication on the Internet as it is any library index for what is written in the books on its shelves, to point to the intermediary has become the most comfortable strategy, despite the uncertain basis. In an ultimate extent, the problem for Costeja was not to appear in an epic digital newspaper library but in the results of the most consulted search-engine of the world, whose possible clients would use it for the obtaining of his personal references too. Google’s answer was not favourable at all, juts a “see you in California”, the place where the searcher is legally established.
In their report about “Enemies of the Internet” (2012), Reporters Without Borders (RWB) warned about the progress of a new guideline from the European Comission, which got wind of an unprecedented legal notion that had already been updated in all the privacy debates: the so-called “right to be forgotten”. As they thought of it as a possible threat against freedom of speech, RWB advised “A generalized «right to oblivion,» enshrined in a law, would be hard to reconcile with online freedom of expression and information. Such a law would be hard to implement in practice and could place an impossible obligation on content editors and hosting companies – the complete erasure of online content”
The formulation attempt of this “right” scares: to give each individual the control of all the online information related to his personal circle, and therefore the possibility of the selective deletion of the data that could (supposedly) damage him/her. Of course the breadth of vision for the significance of this deletion and the breadth of vision for all the “personal range” are conditions that can define completely different scenes regarding the affectation of third-parties rights, particularly those refered to freedom of expression. From the right to delete uncomfortable pictures from your own Facebook account to erase references to his/her person that you can find annoying and which were published by third-parties in the whole Web.
According to their supporters, the establishment of the right to be forgotten deals with an urgent quandary rose up in the digital era: the impossibility of the individual to escape from vital registration accumulated in the network over the years, that it seems like a ghost haunt throughout life, affecting his honor, privacy or image. Thus, in a shade of high-sounding statements liket “the net never forgets”, “everything is in the cloud”, “reputation bankruptcy”, “online reputation” and other buzzword like that, the debate about the “right to be forgotten” has gained prominence specially in Europe, where the protection of personal data has a fundamental right range.
It is important to remember that there is already a solid judicial development in the whole world whose concerns are to solve the controversies generated when the exercise of freedom of expression affects honour, privacy or image of others and that the mechanisms to balance both rights work well, including the Web. The so-called “right to be forgotten” would add a new category for the affectation to the honour, privacy or image of expressions that are neither libelous nor fake or to be in breach of intimacy. I.e. even though it is all about reliable, public and lawful statements (like the advertisement from Social Security), when the damaged individual wish to “forget them”, they must be removed. The Web gurus insist that the net has the ciber-revolutionary feature of “remembering it all” and that is why this kind of information would not disappear by default as it did before. The cyber loophole attacks again.
However, the problem is not as innovative as it seems, it has very analog records. In France, the law recognizesle droit à l’oubli, a right that allows an ex-convict object to the dissemination of the reasons for his imprisonment after serving their sentence. The UK has a similar legislation called“Rehabilitation of Offenders Act”. Also Germany, which was controversial even in a case related to Wikipedia when two ex-convicts for murder demanded the removal of the details of their imprisonment in an article. In the USA, on the contrary, the First Amendment protects those who spread this kind of information, which protected the Wikipedians. But also in the USA (and other countries such as Spain or Argentina) services that sell financial risk reports are required to keep financial records of individuals for a limited period of time so that despite their past debts, there can be a “new beginning”.
It is important to say that this regulations that “force oblivion” do so in a very restricted context and in clearly defined situations. As a general principle, to force oblivion in our own memory could be an act motivated by a very reasonable human need. However, to force the oblivion in other’s memory can become a terrifying totalitarian act.
A Tuesday 13th sentence
As the debate over the “right to be forgotten” was rising, the crusade for forgetting Mario Costeja González moved through administrative and judicial stages of proceedings. Costeja initiated the administrative procedure before the Spanish Data Protection Agency, which accepted to protect his case, and even though it did not admit the request against La Vanguardia —protected by guarantees of freedom of speech— it did against Google headquarters and Google Spain, that are not press and are more affected by data protection legislation. In 2010, a decision about the removal of the demanded links was requested. Google headquarters and Google Spain were outraged and they went to Spanish Justice asking for the nullity of that decision. In 2012, the court that must solve the National High Court decided to make an inquiry to the Court of Justice of the European Union (CJEU / TJUE in Spanish) on the controversy before pronouncing. It would set a precedent not only in Spain but in the whole Union. Two years went by and the day of the sentence came.
In Spanish speaking countries, the phrase “neither marry nor board a ship” is used on Tuesdays 13th (the equivalent to Friday 13th). We should add “do not pronounce about sensitive issues relating to the Internet”. Finally, last Tuesday 13th, the European court reply: it is of the opinion that Mario Costeja González has, in fact, the “right to be forgotten”; that the European jurisdiction includes Google for doing business throughout Europe and that by the virtue of a broad interpretation policy data protection (Directive 95/46/CE) Google must remove the annoying references to the past delinquent debtor Costeja revealed in La Vanguardia whenever searches about him are made. Each time Google hides a result it knows, a kitten dies on the Internet.
Without a doubt, last Tuesday 13th would be a “new start” for Costeja: when you enter “Mario + Costeja + González” in Google, it shows about 75,800 results. The news received media mention and treatment with global reach, in many languages, and it will be analyzed and there will be different opinion articles about it. It is likely to continue referencing it for decades in specialized areas. The first concrete consequence of this court decision is that the glorious non-transcendend of the auction notice published in a lost page of La Vanguardia in 1998, together with the friendly face of Mr. Costeja talking on the phone, will always remain alive in the collective memory from now on. It is because the facts that reveal the past debts of Mario Costeja González have been irreversibly linked to a legal landmark impossible to forget, the recognition of the “right to be forgotten” in Old World.
Already said by Jeffrey Rosen when mentioned the proto-oblivion directive of the European Comission in 2012: “Europeans have a long tradition of declaring abstract privacy rights in theory that they fail to enforce in practice”. In this particular case, we can say that they have spectacularly failed.
Not included in the directory
As a first observation, it is advisable to clarify that is it not the end of the world, a step towards it for sure but not the Apocalypse. The decision of the Court sets limits, distinguishing the ones who can be requested for the removal of data and the ones who cannot. The media, as well as “journalistic or artistic literacy”, are excluded. Public men too, as long as there is public interest in “remembering” what they did.
When we think about the regulations of personal data, we think of databases regulations. We do not need the Internet to think about it: we feel entitled to ask about being removed from the phone book, i.e. removed from the database of clients published by the telephone company. But within the Web, everything is managed from a database: a blog, a journal, a search engine. The European Directive gives some guidelines to describe what kind of databases are affected. For Google, the CJEU decided to adopt a “broad view” of the concept and, to the extent that Google excludes itself as a “media” company, according to the court it has not been different from the case of the telephone company database. That is, from someone who asks “not appear in the directory” to someone who asks “not appear in Google”.
Mum or dad?
What is the real dilemma behind the pronouncement of the Court? To continue with the paradoxes, Charles Arthur introduces the topic in The Guardian: “What happens when an irresistible force meets an immovable object? It’s the classic conundrum of philosophy classes, but on Tuesday the European court of justice (ECJ) ruled on its equivalent form for the internet age: what happens when the right to privacy collides with the right to freedom of expression?”. In fact, this is the approach that has prevailed in many analysis of the case —a complexcollision between two fundamental rights— a situation that forces the experts to decide who they love the most: their father freedom of speech or their mum privacy, keeping them in a discreet caution facing the verdict. Is that the real dilemma? First, this paradoxical Streisand effect of the sentence -which admits that the plaintiff is right in theory but damages him/her in an indefinitely grater way in practice- may give us a clue to the inappropriate form of the perspective.
False theoretical debates that cover real practical problems are not new. When the collision of rights related to the so-called intellectual property are analyzed, there is another tricky dilemma copyfighters know well: “author’s rights versus the right to culture access”. As we all know, a real collision does not exist between them and the display of the theoretical debate is no more than a sophistry to delay the existence of a monopoly in practice that benefits a minority group (within the authors) to the cost of suspicious benefits for the common good and where “collateral damages” are the real problem.
Who wins with the “right to be forgotten”? It is difficult to imagine a multitude of anonymous citizens unprotected by the stalking of memories that would massively go to the court to enforce their forgetfulness. Probably the group demanding the new digital oblivion does not differ from the one whose voluntarily chosen high level of exposure —and high level of resources— usually keep hard court disputes with the media vying for the control of the speech about themselves: celebrities, athletes, models. Think wrong and you will be right: a future politician cleaning his/her past from potential compromising events as an ordinary citizen, before his/her future condition of public man/woman leaves him/her marginalized from the resource.
We are all Google
“It is the triumph of an ordinary individual against a multinational corporation” has been another repeated topic. Certainly, Google is an evil and dangerous corporation —we do not have doubts about it— but, unfortunately, this circumstance is not part of the verdict’s basis. Therefore, the principles established for Google will similarly affect anyone, no matter it is a corporation, a NGO or even a blog’s internal search machine. If you collect and manage personal data, even if it were in a marginal way, and you introduce the information in an organized manner as a reply to an information search about an individual, you enter the general law (if you are in Europe, of course). As it happens with Intellectual Property, it does not matter how good or bad are Kim Dotcom, Pirate Bay, Taringa! or Series Yonkis, we are all equal when we are likewise exposed to an abusive legal framework. This case is not different: if you own a forum with a searcher, you can end up being the target of someone who wants to forget.
Another giant of web crawlers —though much less famous than Google and non-profit— is called Internet Archive. Its mission consists of collecting data from the whole network —which will inevitably include personal published data— to avoid oblivion. It has 411 billion preserved web pages. Curiously, “everything remains in the cloud” but is you check links from two years now, half of them will be broken. Thanks to Internet Archive, much of the information is retrieved. Probably, the ephemeral nature of the information would be the main Internet feature and not the opposite, that is why we need Wayback machines. “Public interest” as a guarantee against major oversights is a dangerous strategy. The public importance of a memory will be revealed in the future. The memory of the files is a too valuable documentary archive for suppressing it to the tyranny of small personal caprices. Fortunately, the Internet Archive and its infrastructure are outside European jurisdiction.
However, the most dangerous element of the CJEU sentence is clearly described by the final press release: “The Court points out that the data subject may address such a request directly to the operator of the search engine (the controller) which must then duly examine its merits” That is, the Supreme European Court decided to download in Google (and other search engines) the initial judgment for arguments and reinforce its role of private justice system. It is copyright-police already —needless judicial process for the thousands of takedowns made every day—, it will not be too much for it to become Ministry of Truth. Europe has given it the right to.
- “An internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties” Court of Justice of the European Union. Press Release.
- “Explaining the ‘right to be forgotten’ — the newest cultural shibboleth by Charles Arthur - The Guardian
- “The Right to Be Forgotten” by Jeffrey Rosen - Stanford Law Review (2012).
- “From the «right to be forgotten» to collective amnesia” by Enrique Dans.
- Paper: Ausloos, Jef. “The ‘Right to be Forgotten’ — Worth Remembering?” (International Fellow at the Electronic Frontier Foundation Doctoral Researcher at the Interdisciplinary Centre for Law & ICT) [PDF].
- Auto de la Sala de lo Contencioso-Administrativo de la Audiencia Nacional de la Justicia española [PDF].
- Vanguardia’s 23rd page, January 19th, 1998 [PDF].