Stephen McLeod Blythe: Freedom of speech, Internet Law, and all things Digital Marketing
Ever seeking to be seen as the ‘family man’, David Cameron has stated that in future, all government policies should pass a ‘family friendly’ test before becoming law. (#)
It should be pretty clear to anyone with a critical mind that this is nothing more than meaningless spin and rhetoric. Cameron’s government are focussed on what benefits the privileged, not the underdog, but they have to appeal to a moral position in order to condition skeptics into voting for them. However, there’s one specific example that immediately comes to mind that should illustrate the duplicity involved with this proclamation: that of immigration.
The usual bullshit position on immigration in the UK tends to be: “we’re here and it’s our right to be here – nobody else should be allowed. Foreigners should just go home.” – worded more or less diplomatically depending on who is involved. Immigration? Pah! Why should those immigrants be considered anyway?
Interestingly enough, experience has shown that this dogma transforms (as do many others) when the issue comes closer to home. It’s easy to dismiss immigrants of a different colour or nationality in the abstract, but not so much when one of your family members is separated from a loved one because of harsh and unpredictable immigration regulations.
The fact is that immigration policy in the UK is racist, and purposively both complex and contradictory in order to make the application process as difficult as possible. There are no elements of fairness or justice in how people are dealt with, and what results is a maddeningly frustrating and expensive undertaking for anybody who dares to fall in love with somebody from another country. When the system invariably break down, people are forced to appeal to the safeguard of the European Convention of Human Rights, which is then handily used as a scapegoat for undermining national sovereignty. Few point out the responsibility of the UK government to ensure that the system is fit for purpose in the first place.
There are endless amounts that have already been written about my own experience with the UK immigration process alone, but never published. It’s something I constantly swither over making public, partly through fear of any future reprisal. After all, we still have a number of years to go before we are completely out of the woods, and at any point our hard-fought battles could be revoked. Why is so little said about this stuff in detail by those who go through it? Because we are terrified of the possible consequences that might happen. People should know about what injustices happen in the system, and freedom of speech should guarantee the ability for that to happen, but who wants to risk it when their application may be denied?
For those of us who are on the receiving end of such policies, we know how awful it is. We know that immigration is a disgusting mess; one that has no concern for families, or for keeping them together. We know that kids get used solely as an excuse to raise the barrier for entry to the UK, not treated as human beings. We know that what really matters here is ethnicity, not family values. We know that it’s a specific kind of morality that is in mind here: that of the white, mother and father, British kind. We know that all this is true, and have resigned ourselves to being subjected to that, often silently… but to then turn around and talk about the importance of ‘family friendly’ policies is just flat out insulting.
Don’t believe a word of this pish.
At WordPress.com part of my job is to push back against those who seek to abuse the law to censor blogs that they don’t like or agree with. Complainants commonly make claims using the process of trademark and copyright law to intimidate sites into doing what they want, even where they have no valid right to do so. Sadly, many people don’t have the knowledge or resources to fight against this sort of thing, and will remove content after being on the receiving end.
Recently we (the Terms of Service team) received correspondence from someone claiming to act on behalf of Janet Jackson. They had submitted a trademark complaint about the use of the phrase ‘Janet Jackson’ on a particular website. Effectively, they wanted the article removed for an alleged violation of their trademark, despite the fact that the page only mentioned Janet once. This is clearly not what trademark law is meant to be used for – something any law student would be able to tell, and so was clearly just a cynical ploy to have the content removed.
We refused to take action against the site, and notified the owner about what was going on. She has posted up a great response over on her blog. Here are some excerpts:
Allow me to convey my gratitude as both a fan and a corresponding legal target. I recently received the most flattering letter from your IP lawyers in which they allege that I committed a federal crime of TM infringement by mentioning your name in a blog post. That they would devote time and energy to catching my blog in their social media dragnet and do me the honor of writing a cease and desist letter is thrilling.
You see, humble as it may be, I take my writing very seriously (as, apparently do your lawyers). I have a Ph.D. in English, teach college writing and literature courses in Boston, and am working on my first novel manuscript. For anyone to allege lightly and insubstantially that my writing infringes on any kind of TM, IP, Copyright, is personally insulting and slanderous. WordPress’s lawyers have proven their worth by establishing promptly that your lawyer’s charges against me are entirely unfounded. I will not burden this article any further regarding the ins and outs of IP law and this case. WordPress understands the importance of protecting independent writers and free speech from corporate legal bullies.
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.