Do People Who Do Dodgy Things Have A Right To Get Them Forgotten?

We all do things at some point in time that, on reflection, we wish we hadn't. And there are times when someone's opinion of our conduct differs from our own perceptions thereof.  Let's be honest here, it's funny when people go all King Canute and order the tide to stop coming in* only to end up with wet feet, particularly when they do it on the internet. The attempts of one Dr. Janice Duffy of Adelaide, Australia, are a case in point.

The Psychic Stalker

On a website called Ripoff Report, you can see (if you live anywhere but Australia) a ream of hysterical accusations about Dr. Janice Duffy, in which she is alleged to seek out psychics, demand free readings, then complain about them on consumer websites, even going so far as to create sockpuppet accounts to get in contact with people that she then complains about.

The case

Per the court ruling, the facts of the case correlate with the Ripoff Report's users' assertions paraphrased above. Nonetheless, Duffy won the case because the court decided that her well-documented depression, the loss of her job, and her financial embarrassment constitute actual harm. Basically, even though she was not generally considered reliable by the presiding judge, he felt sorry for her. It doesn't help that there's a growing pile of bad case law precedents to back him up. There is much to be concerned about with regard to the future of the internet:

The idea that a search engine can be held liable for defamation because its algorithm does its job correctly is immensely troubling. Even if you absolutely hate Google, this kind of ruling should worry you. Placing liability on the parties actual (sic) responsible is the hallmark of a functioning society. Blaming intermediaries creates all sorts of dangerous consequences on speech and innovation.

The ruling gets worse and worse from there, including lines like the following:

By providing the hyperlink, Google’s software plays an essential role in the delivery of the content of the webpage to the user upon request.

The court rejects basically all of Google's defenses, repeatedly going back to a statement that more or less says "but you published this defamatory information." - Mike Masnick, Right To Be Forgotten Now Lives In Australia: Court Says Google Is The 'Publisher' Of Material It Links To - Techdirt

Of course, by the court's own logic, it is also a publisher and has disseminated the information about Duffy itself in its ruling. Should this be blocked as well? What about this blog post? I have linked to the allegations against Duffy, linked to the court document provided by Techdirt, and stated here that the ruling itself pretty much verifies them. By typing this up and clicking "Publish" I become a publisher. But defamation?

The verdict

Techdirt commenter Nop has helpfully provided a basic overview of defamation law in Australia. Truth is a defence. However, even though Justice Malcolm Blue asserts,

Ultimately, my findings and conclusions do not turn on the credit of Dr Duffy’s evidence.

he clearly sees a problem in the fact that if you look up Duffy's name on Google you see "Yer woman from Fatal Attraction... sort of. Long story, which she wants taken off of Google search results." And that, dear readers, is what the case hinges on. That she made sock puppet accounts and posted complaints about psychics online is not in dispute. That she actually stalked, per the letter of the law, the absurdly-named Kasamba psychics is. What I'm saying is, she's won a Pyrrhic victory if she's won at all; only the most egregiously hyperbolic statements are going to be de-indexed — from the Australian search results. We will still be able to see them here. I'm not sure she realises this: apparently, she's too busy gearing up for a campaign to introduce a right to be forgotten law in Australia. The trouble is, it'll only apply in Australia.

The Implications

The idea of a right to be forgotten is essentially down to a sense of entitlement about control of the way one is perceived online. Well that is problematic on a number of levels. I can sympathise to the nth degree with the desire to Make Mean People Behave. Heaven knows I had a go at that myself — and fell on my rear end. Long story. The bottom line is, we have only the right to control ourselves, not other people. There are, however, implications that can't be blithely ignored with "Sorry love, that's just how it is." Let's take a look.

Deleting history...

Some say history is written by the victors. Not so, history is written by those who can provide and preserve the most evidence. The European Right To Be Forgotten legislation orders the removal of links from search engines, not unwanted content from the websites it is actually hosted on. The Telegraph has been complaining about the impact of this legislation on its own indexed pages. These are some of the stories that have been de-indexed:

• A story about a British former convent girl who was jailed in France for running a ring of 600 call girls throughout Europe in 2003. Police were tipped-off about Margaret MacDonald’s operation by a former colleague following an argument.

• A second article, entitled The vice queen of Windsor, detailing MacDonald's arrest and the allegations made against her, has also had its link removed.

• An article from 2008 about a former Harrow pupil, Alex Fiallos, who returned to his halls of residence after a night out drinking and drove his £4,000 car around the grounds at speeds of 30mph before crashing. He eventually collided with a set of steps in a scene reminiscent of the 1969 cult classic movie starring Michael Caine. His parents had given him the silver Mini just the day before.

It's not nice to have a story in the paper about drunkenly re-enacting a scene from The Italian Job lurking somewhere in the search results on your name, but surely to goodness potential employers would overlook that if you could prove that you can take responsibility for your actions. Besides, if you do enough positive, noteworthy things, your friends and random associates will surely stop sharing the Telegraph link around on their social media accounts and talk about your subsequent achievements instead. Ah... you didn't get the thing about the actual content remaining online, did you? That's all the EU ruling grants: removal of links from search results, not underlying content.

...good luck with that

The Telegraph links to its own story on that page and other papers, websites, and blogs picked it up so that even if you only search Alex Fiallos (without quotes!) you'll find he went a bit nuts when he was a lad. Big deal. We all do stupid things sometimes, Alex got caught and the story ended up in the papers, it's not worth ruining his life over. Assuming you believe that a successful career in finance equates to ruination. It's obvious from this brief search that Alex learned something that body-shaming target and Salon contributor Caitlin Seida has yet to do: accept that it happened, learn from the experience, and move on. That's why the only negative thing you can find about Alex online is that one stupid thing he did back in the day. Meanwhile, Caitlin is stuck playing whack-a-mole with people who make horrible comments about her online, trying to make them See The Error Of Their Ways.

The EU ruling: so. Much. Wrong.

The legal perception of search engines as controllers of personal data is erroneous in the extreme. The ruling's fact sheet declares:

On the applicability of EU data protection rules to a search engine : Search engines are controllers of personal data. Google can therefore not escape its responsibilities before European law when handling personal data by saying it is a search engine. EU data protection law applies and so does the right to be forgotten.

Okay, that's enough stupidity to be getting on with.

Testing the theory

Open a new spreadsheet file. Create some columns with people's names in, one per column. Now populate the rows beneath them with some facts about those people, one fact per cell. Ten columns of ten rows each should suffice for the purpose of the exercise. Now select all and add a filter. This should put a down arrow beside each name. Now search that spreadsheet using keywords of your choice using the Find option. That will bring up a lot of results, depending on the word. Fine-tune the results using the filter by clicking off "select all" and choosing a specific term. Depending on the data you added, you should find one or more cells with the same data in under one specific name. Congratulations, you just made your own search engine.

Far be it for me to do your thinking for you but I do believe that the conclusion you'd have come to is that Excel or whoever are not responsible for the results you got when you typed "pregnant" into the Find box. They never put "is on the dole" into Debbie's column. You did. So then, who is the controller of personal data? The people who possess it, and that ain't Google, it's the sites they link to. You can learn more about search engines and how they work on Search Engine Land.

Controlling data

We can't all control what aspects of our personal data end up online; it's been picked up and posted, often by ourselves and our associates, in a wide range of places online, many of which are automatically populated by spiders that pick up the data and publish it. Needless to say, if the information is online at all, whoever links to it makes it findable via the link on their website, blog, or social media account — and Google will pick it up. So the data cannot really be disappeared; you end up playing a game of whack-a-mole trying to get rid of each link, one by one, till finally you give up and get over it, often having belatedly come to the conclusion that drawing attention to your efforts to get embarrassing information delinked is guaranteed to bring it back into the public eye.

The data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data...

Erm, no. A delisted link to one article, e.g. The Telegraph story of a teen's misdeeds does not equal the removal of the story, or the searchability thereof. In fact, Fiallos's efforts to delist the Telegraph's link to its story about him got his antics back into the limelight. That perceived right is theoretical only; Google's indexing works by picking up items published online, including this blog post. It can't pre-emptively police itself and it can't stop me from talking about things I want to after the fact. If I get kicked off Blogger for breaking its terms of service (not that I ever would) I can start another blog and use Google's own tools for getting it indexed, and BAM! I'm back in business. So you see, whoever actually possesses the data controls it. Search engines don't possess data, they just link to it — and people like me who link to articles that certain people want to get delisted from the search engine results to make sure they are still accessible, despite the regulators' best efforts.

Controlling your image online

You can't actually control the public's perception of you, but you can influence it. I've written many blog posts on the subject that many of you may find useful. In Who Are You Online? Five Points To Ponder, I had a look at the way people's own conduct has as much influence over what people think of them as what other people say about them. I remain convinced that if you want other people to think well of you, be self-aware enough to behave in a way consistent with the image you want people to have of you. In Learning From Failure: How To Avoid The Mistakes Others Make I pointed out,

An artificial reputation can quickly be pulled down by the emergence of a few facts. A real one can weather any storm. Engagement with the people you're trying to impress will get them on side. They'll remember if you slag them off, then try to cozy up to them later. 

...Be consistent, be honest, be reasonable, be friendly, and be careful of the company you keep. Say what you will about yourself, but it's what the people who interact with you think of you that matters when you're trying to do business online. You can't manage your reputation until you've learned to manage your conduct.

I still think I'm right. Finally, read Five Ways To Save Face In An Internet Firestorm to see my recommendations for dealing with a reputation-wrecking situation. Not one of these involves trying to get nasty things about you taken down from search engine results because we've all seen how ineffective that is. Instead, I recommend you take a long hard look at your attitude and conduct, take responsibility for your decisions and actions, and move on.

What about personal data?

Personal data should not mean "information that affects my reputation." It should only ever refer to information about you as an individual. If there is information about you online that isn't true or that you find embarrassing there are some avenues for getting it either removed or downgraded. It doesn't matter that much that Dr. Janice Duffy can't bring herself to use my surname when referring to me in the Techdirt comments (my name is Cockcroft, not "Cockburn." Perhaps it's her idea of a joke) but I'd be upset if a story got into the papers of someone with a similar name committing a crime and they used my picture to illustrate it. Okay, if that happens, what do you do? Personally, I'd tweet at the paper or journalist, politely inform them that they were using the wrong picture and ask them to replace it with the correct one along with a correction. This would establish the truth in the public realm; they'd have to either refute my claim or make the correction.

Generally speaking it should be possible to contact the website owners or admins directly by email or phone to ask them to remove or change information they've published online. If they don't get back to you quickly you may use social media but be careful; the world and his dog will know about that thing you want to get offline. If that doesn't work you may elect to go legal but if the content is hosted by a website operating from another country it'll cost you. You may find it easier to try to bury the information under piles of blog posts, etc., using the same search terms so the results you prefer float to the top (this can take a while). It goes without saying that you should never post anything online that you don't want the world and his dog to see; always assume that it will end up going globally viral, however hard you try to restrict its dissemination.

What about defamatory statements?

Okay, what if I was still doing web design and someone wanted to wreck my business by posting complaints on a consumer website?

• I could challenge the poster's assertions by asking for proof
• I could post a rebuttal with screenshots of the work carried out
• If there was a genuine complaint I'd apologise and ask what could be done to put things right
• I could post linked testimonials on my website to places where other people had written positive things about me. These would be verifiable, not made-up ones
• I could carry on as I was and let my work speak for itself 
• I could engage with people online in order to build a positive reputation; this would counteract any negative statements made by others

In my experience, when people are affected by negative publicity it's basically because they did something that drew attention to themselves, then made a cack-handed attempt to control the narrative. That all you see in relation to Dr. Janice Duffy is her internet woes is because she's done more to draw attention to her issues with Ripoff Report than to her work as a mental health professional. Heck, she's even made a blog about it, which serves only to make people ask what the other side of the story is. Of course if she links to those articles she wants delisted from Google, she's provided a handy reference to them for anyone looking to find out what the fuss was all about.

Conclusion

It is emphatically NOT a search engine's job to be a PR or reputation management tool; that is your job as an individual. This is best achieved by behaving in a way consistent with the way you want to be perceived, not by behaving badly, then crying to a court that your right to be portrayed online in a positive light has been infringed. Whether or not a right to be forgotten exists in law or in fact, any law that puts the onus on a search engine to control the dissemination of data is unenforceable in practice, I just proved that here by writing this blog post. Remedies to actually get unwanted content off the internet exist and in many cases this is not hard, but where it's a case of people behaving badly to cause trouble you can either just ignore them and encourage others to ignore them or post a rebuttal to get your side of the story in that space. What you don't do is dedicate a chunk of your life to making Sisyphean efforts to control what others say about you online. Believe me, it's not worth it. I'll leave the last word to Mr. Ken "Popehat" White:

@Popehat Pour vous, Ken. Great post, very quotable. :) pic.twitter.com/LbAGRiCahG

— Wendy Cockcroft (@wendycockcroft) May 5, 2015

*Okay, so the idea was to prove to certain flatterers that he couldn't actually control the elements, but still...