Stephen McLeod Blythe: Freedom of speech, Internet Law, and all things Digital Marketing
There has been much said in the past week about the ‘right to be forgotten’ principle being developed in European Law, after the decision by the European Court of Justice in the case of Google Spain v AEPD and Mario Costeja González.
The decision of the ECJ has been subject to swathes of criticism for a variety of reasons. However, one of the biggest issues to raise its head is the ideological discussion of Data Protection v. Freedom of Expression.
Originally, data protection was intended to help protect individuals from organisations collecting and storing information on them erroneously. In general, data protection is a good thing. Infact, it’s bloody awesome. It means that when any company or other body collects ‘personal data’ on you, recording it in a filing system, you have the right not only to see it, but to have inaccurate data modified, as well as to prevent the processing of it for marketing purposes.* Sounds good, right? Oh, and this also applies to organised filing systems that are stored on paper, not just electronically.
In reaching its decision in the Google Spain case, the ECJ has applied the established approach to data protection, whilst at the same time injecting the relatively new principle of the ‘right to be forgotten’. The problem with this is that the circumstances are fundamentally different to those in which the protections were introduced to be applicable to.
In the Google Spain case, the information was held to be legally published on the site of the newspaper in question, and so is not required to be removed. However, because Google collected, stored, and processed the links to the information, it was then considered a ‘data collector’ under the data protection definitions, and so obliged to consider, and give effect to the removal request.
This is DUMB.
This is not the same as a situation where an organisation is keeping detailed personal records on an individual (such as their medical details, telephone number, or address, for example), that would not otherwise necessarily be found elsewhere. In this situation, the information is already in the public domain, published lawfully. The fact that Google collects the locations of this data, stores it, and then offers up the hyperlinks in search results should not bring it under the gambit of The Directive in its current form. I won’t even begin to think too much about the baffling way in which this seems to fly in the face of the general approach to hyperlinking that was laid out in the Svensson case, earlier this year.
In any event, these removals only apply to the EU - not to Google sites (or those of any other ‘search engine operator’) that lie outside. Clearly the ECJ must not have heard of a proxy before. At the root of it, this is bad law because in the context of a global Internet, it is meaningless.
When the right to be forgotten was first being discussed, it was in relation to something far more sensible – something which had very little to do with freedom of expression at all. It was to do with the right of users to have online service providers remove the personal information held on them when they chose to delete their account. Ever tried to delete your Facebook account completely? It’s not exactly a walk in the park. It wasn’t about trying to hide past transgressions that have already received media attention, and it wasn’t about curtailing the basic architecture of the web – it was about being able to tell Zuckerberg that when you want to leave, they should honour that.
The problem with the ECJ’s decision is the way in which they have applied the principles of data protection, rather than data protection itself. Whether or not the Court wilfully misunderstood, in order to crowbar the right to be forgotten into the judgement in this case is one thing, but that doesn’t mean the entire principle should be dismissed.
Sadly, a lot of the commentary has focussed on the specific facts of this case, and applied them broadly to support a wider theoretical gap between the supposed American principle of freedom of expression, and the European importance on privacy. Whilst that is a whole separate discussion, I do not believe that this should be reduced to some sort of absolute Transatlantic ideological difference. Instead, it should be seen for what it is: a bad application of principles that are fundamentally designed to protect individuals.
The right to be forgotten is valuable, but it should never have come close to impinging on the freedom to ‘receive and impart information‘ on that which is already lawfully published.
* This interpretation is based on the UK Data Protection Act of 1998, which gave effect to Directive 95/46/EC – the EU Data Protection Directive.
You can read the full text of the original application, the opinion, and the judgement of the ECJ over on Curia.
The relevant (English) press release from the ECJ on the Google decision is here.
Here is a helpful description of how Google’s new form dealing with right to be forgotten requests will operate.
Stanford Law Review article on the Right to be Forgotten here.
Article on the decision and censorship from Index here.
‘What you need to know about the ‘Right to be Forgotten’ – here.
One of the defining things about working at Automattic for a lot of people is the meetups. We fairly regularly meet up in different parts of the world to get to know colleagues, work on projects, etc. The location can be anywhere from Cardiff to Hawaii, and one of the latest trips I went on saw us travel to Barbados. This naturally has led to a whole host of questions, not least the staff of the hotel who bemusedly asked: “you came to work on the BEACH?”
Below I respond to the usual queries that people have, which will hopefully mean they make a bit more sense.
Working at ‘home’ (or on a train, at your friend’s house, a coffee shop, the pub, in a hotel, on a boat…), and the flexibility that it brings is amazing. The autonomy that we have allowing us to work our own hours, wherever we want, means that we can set up your schedule to fit your life, rather than the other way around. I personally work better in a number of shorter periods of time spread out across the whole day, so that’s usually what I do.
Communicating online, and working remotely is something that a lot of us have gotten used to from a young age. For me, it was spending time on IRC and forums when I should have been out drinking in the park, or whatever else Glaswegian teenagers are meant to be up to. As a result, it feels natural to develop friendships online. However, even for hardcore Internet geeks, meeting in person is important. Some of my oldest friends are those that I originally met online. The key distinction between them and others who I eventually lost contact with is that we ended up hanging out in real life too. Digital bonds can be strong and effective, but to really understand someone you need to spend some time together in person.
No matter how adept you are at online communication, the quirks of text-based speak (as opposed to voice, rather than mobile shorthand) mean that you can often be at risk of taking certain things that are said the wrong way, or not quite getting the intended meaning. I think sometimes people who are so used to communicating via digital mediums end up forgetting to inject their words with semantic meaning, so it can wind up even more difficult to read into.
The bottom line is: it’s important to meet people in person, especially if you are working with them daily. You get to know individual traits and idiosyncrasies, so that you understand how they come across online better. It means you have a better connection for when they next need to ping you to ask for help with something on Skype, and it’s not just an avatar staring back at you. This gives a whole different, and positive frame of reference, which makes working together a whole lot better (and more productive). The coolest thing for me is that moment when I can hear a person’s voice in my head whilst reading what they’ve typed out – that’s when you know it’s working.
On meetups, we always have defined projects that we will spend time on – ones that are easier to co-ordinate in person. That said, the point is not just about completing tasks. Infact, arguably the most important thing is getting to spend time with colleagues that you never usually get the chance to see, as I’ve explained above. It’s the longer term benefits from this that have the bigger impact than the short term gains from project work. If it was at anywhere else, it would probably fall under the aims of the dreaded, mandatory ‘company retreat’, with words like ‘team building’ and ‘co-worker bonding’ getting banded about. That’s pretty much exactly what the point is, except this time it’s done right. We actually want to spend time together, because we never get the chance to.
On top of that, I always used to wonder why businesses would spend so much money flying their sales people out to places like Australia and Chicago, to require them to return after just a day or two. To me, surely it made more sense to make the most of the expenditure on those flights in terms of personal development. If people are exposed to the cultures and places they visit, and able to enjoy them more, then they arguably become more happy in their jobs, and their knowledge about how to work with them grows. To me, it makes perfect sense to spend time in different places – your workforce becomes smarter, and more culturally aware – something which is an invaluable asset when working with customers from all over the globe.
Firstly, working together all of the time simply isn’t possible for a distributed company like Automattic. Employees live all over the world, where they choose, and so to bring everybody to one (or even multiple) places in a permanent fashion doesn’t make practical or financial sense. This isn’t even to mention the fact that doing so would go firmly against the independent culture that is so deeply ingrained in everything that we do.
Secondly, whilst seeing each other is awesome at meetups, it’s a fallacy to assume that it would be better to do that all the time. I love meeting up with other people, but I work far better when I’m in my wee cupboard office at home (or in bed, to be fair). At the end of a meetup I’m usually knackered, as it’s a pretty intense period of time to spend being social constantly when you’re not necessarily a naturally extroverted person.
Working remotely and meeting up every so often gives the best of both worlds: the independence and freedom to work where, when, and how works best for you, but also at the same time getting the chance to develop deeper bonds with people. Spending short bursts in person actually helps groups become closer, rather than elongated periods where they have to be.
This is probably the one that most perplexes people. The fact that we met up in Barbados might seem ridiculous on the face of it, because of the distance from where I am, the weather, rum cocktails… everything. However, it makes more sense than might appear on the surface, for some of the following reasons:
1. Distance. Anywhere we pick will be far away from somebody. On our Barbados meetup, the majority of people were from North and South America, which meant that Barbados was actually one of the most central locations we could have found. Ironically, I had less flight connections going here than I would have flying to many cities in the USA, and the travel time was about the same as that to Chicago. I know where I’d rather be going, given the option.
2. Red tape. Bringing together a bunch of people from different countries means you need to think about visas, and border clearance. Whilst I’ve had a hard time at the American border a couple of times, that’s nothing compared to the hassle that some of our crew would have had to endure. (ever seen a Sri Lankan passport?) Barbados meant that all of our passports were accepted without a visa being required, and getting through customs was a breeze.
3. Language and Currency. In Barbados, everybody speaks English, and the currency is legally tied to the US Dollar at a ratio of 2:1. That means that people could use their own currency or credit cards, and there was no hassles when we were trying to organise things with the hotels or restaurants (not due to a language barrier anyway). Whilst you might want to avoid precisely those things when going on holiday yourself, they make life a whole lot easier for a week long meetup.
4. Cost. The price for the hotel, food, and everything else can wind up being a whole lot cheaper than you’ll find in either the US or the UK. The only thing to contend with then is travel costs, but these actually worked out comparable as well, given the location of Barbados, and the frequency of the flights.
The question really is – why on earth not go to Barbados? The food is good, the weather is great, the people are friendly, the beach is right next to the hotel…
Unless, of course, you have to have a terrible time for it to be considered work.
This past month, TalkTalk repeated past form and unilaterally blocked access to millions of WordPress.com blogs.
It’s not clear exactly how they did this, or whether it was restricted to specific IP ranges, or whether or not this was part of any particular policy.
Don’t think that ‘porn’ filtering will affect you? It already is.
Read more from the Open Rights Group here.