Off the record: Privacy and the media in the digital era

Next year’s new pan-European data laws could be exploited to rewrite and eradicate history. Allan Prosser argues that we are sleepwalking into an era where digital records will be rewritten, disguised, and removed to protect reputation and vested interests and that, in the post-newspaper world, no one may notice the difference.

Off the record: Privacy and the media in the digital era

Next year’s new pan-European data laws could be exploited to rewrite and eradicate history. Allan Prosser argues that we are sleepwalking into an era where digital records will be rewritten, disguised, and removed to protect reputation and vested interests and that, in the post-newspaper world, no one may notice the difference.

There was a telling anecdote in the depths of the New York Times profile of the indefatigable Tuam historian Catherine Corless, who was honoured last month by Ireland’s journalists and news organisations with a special award for investigative research.

It recounts how Catherine would spend hours ”poring over old newspapers in a blur of microfilm” as part of her painstaking reconstruction of the story of the Mother and Baby homes.

Contemporary late 19th century accounts provided by such as the Tuam Herald and the Roscommon Journal underline that, alongside birth and burial reports, newspapers are a vital primary source for people who want to understand the past.

This has an importance which extends far beyond familial curiousity about the precise natal location of forefathers.

For nearly 50 years, a beautifully printed broadside, a single sheet of paper, has hung on my office or study wall wherever I have been plying my trade.

It was written and designed by a consummate typography expert, Beatrice Warde, for the Monotype company to illustrate the elegance and clarity of a new typeface (Perpetua, since you ask). Entitled ‘This is a Printing Office’, it makes this declaration:

“From this place words may fly abroad, Not to perish on waves of sound, Not to vary with the writer’s hand But fixed in time, having been verified by proof. Friend, you stand on sacred ground.”

Let us remember that key phrase “not to vary with the writer’s hand but fixed in time”. It is going to be

important to all our futures.

Newspapers are a staple source of the public record. But they have also been a stable source, a cornucopia into which historians can delve. The importance of this function is recognised by legal deposit libraries.

But traditional publishing, as we witness every day, is an industry under severe financial pressure. And its principal products are viewed by many as uncool and analogue.

They can’t be searched, modified, manipulated, tagged, and hyperlinked, all things that are important to the digerati. Once published, they can’t be delinked or deindexed.

They are boring old newsprint, but a library somewhere will have a copy. And what it says is as immutable as tablets of stone.

Many people are attracted by the idea of editing their past and resetting their digital persona, and it is often easy to see why they would wish to do so.

Previous indiscretions can be airbrushed away. Inconvenient comments could be diluted and amended. Emphasis can be altered. Context can be added. Who is to know?

Some lawyers and sages even hold out the future prospect of individuals being able to declare reputational bankruptcy, and start all over again.

Reputational management companies, for those who are willing to pay, promise to influence the prominence of search returns which might contain embarrassing or inconvenient information.

Search engines, once appropriate pressure is applied, may even deindex the item completely providing certain thresholds are met — the data returned would need to be judged “inadequate, irrelevant, no longer relevant, or excessive”.

This rubric was invented to meet the challenges set down by a 2014 judgement from the European Court of Justice more popularly known as the “Google Spain “ case which promulgated one of the great misnomers of the 21st Century — that there exists something called “the right to be forgotten”.

You might think that the tests applied by Google Spain, that the information has to be judged inadequate, irrelevant, no longer relevant (in other words, time expired), or excessive, are astonishingly subjective.

And you would be right. But what do we have lawyers for, other than to dance around in Aristolean debate?

Matters are, in few months, to become even more complex, and some will say worse, with the arrival on Friday, May 25, of the General Data Protection Regulation (GDPR), described by some excitedly as “the biggest day in data history”.

In many ways, it is a classic piece of EU legislation, seven years in the making, conferring a swathe of rights on individuals with scant thought given to the financial burdens on companies and lots of opportunities for m’learned friends.

There are diverse powers and swingeing penalties and implementing them will be a challenging assignment for Ireland’s Data Protection Commissioner, Helen Dixon, in post since the autumn of 2014, and at the nexus of Ireland’s relationship with what has become known as “surveillance capitalism” whose prime exponents are GAFA — Google, Apple Facebook, and Amazon, in fact any organisation which makes its money by automatically targeting goods and services to consumers based on a perpetually updating profile of their behaviour and habits.

The GDPR covers a wide range of personal information — biometric, genetic, and health, ethnicity, political opinions, religious and philosophical beliefs, trade union membership, sex life, and/or sexual orientation.

Data subjects (that’s you and me) have eight distinct rights: To be informed; access; to rectify errors; to erasure; to restrict processing; to data portability; to object and to challenge automated decision-making and profiling.

All of these are important, and are worthy of deep thought. But today let’s concentrate on “erasure” — excising a publication in an increasingly digital world for reasons which might be entirely justified, but equally can be wholly selfish and self-serving.

The clash between free speech and privacy is not new. They have been in conflict for centuries but with argument now in sharper relief because of instant communication, frictionless retrieval, rapid recall, globalisation, the corrosive tribalism of social media, historical memory, preconceptions about “the right to know”, and the desirability of “forgiveness”, juxtaposed with the ability to forget versus the reliability of the account.

In a magisterial dissection of current legislation affecting publishing, citizens’ rights, and technology, the journalism professor George Brock says:

“The decision in Google Spain will come to be seen as one of the poorest in the history of the European Court of Justice. It makes the best balance between both freedom of speech and the knowledge — fundamental to good journalism — and the protection of privacy harder to achieve.”

Prof Brock says that the four core tasks for 21st century journalism are verification, sense-making, eye-witness, and investigation (of wrongdoing or dishonesty) and adds: “To hold power to account journalism depends on the understanding that neither individuals nor organisations have an unqualified right to control information about themselves.”

But Artemi Lombarte, former head of Spain’s data protection agency, says: “The right to be forgotten does conflict with freedom of expression. Internet users are not entitled to access personal information on the internet. We have to adapt our idea of what free expression allows.”

At least a dozen European countries, often those which felt the yoke of Hitler’s Nazis and/or the East European Stasi and their equivalents, have data protection rights written into their constitutions, all

of which were created in the pre- internet age. But none, up to now, talk about a right to be forgotten, delisted, or erased, a right which will apply fuel to the arguments between those who want to preserve and those who want to delete.

The European Convention on Human Rights guarantees the right to privacy (Article 8) and the right to free expression (Article 10). Similar terrain is mapped in Articles 12 and 19 of the UN Declaration of Human Rights.

The EU Charter of Fundamental Rights guarantees the right to privacy (Article 7), the right to data protection (Article 8) and the right to free expression (Article 11). The UK’s Human Rights Act reiterates the rights in the European Convention. None of these documents talk about a right to be delisted, forgotten or erased. They were all written in the pre-Digital epochs.

The EU’s new regulation on data protection does include a section under the title ‘Right to erasure (‘right to be forgotten’)’. A term — ‘droit à l’oubli’ — originally coined in France more than half a century ago has been pollinated across nations where privacy, in any European sense, is a synonym for control of reputation.

Even within the past decade, a German court found that monitoring content “in order to prevent infringements of the right to oblivion seems to be a reasonable obligation of an online archive”. In other words, collections must be continuously updated according to the mores of the time.

And therein lies the danger in an era where newspapers are becoming fewer and more publishers and

editors contemplate a digital-only future. While data protection is given the status of a super right, who will be there to argue for the integrity of the record?

And what happens when information becomes more relevant t in the future? When the local businessman who has been involved in a questionable, but not illegal, property speculation, and who has the record sanitised, turns out to be a principal financier 10 years later of a political party campaigning for extensive planning deregulation?

This is not a trivial pursuit. At the end of this year, Google had reviewed some 1.98m URLs since May 2014, the date of Google Spain. Some 858,570, 43.2% of delisting requests were successful.

The most prominent countries in this process were France, the UK, and Germany. Ireland mustered 14,372 requests of which 5,220 (36.3%) were successful.

It is a busy time for the paralegals. Google does not disclose individual reasons but provides samples by country. Its example for Ireland is as follows:

“We received a request to delist a 2014 news article about an individual’s acquittal for domestic violence on the grounds that no medical report was presented to the judge confirming the victim’s injuries. Given that the individual was acquitted, we delisted the articles in question.”

There is no notification to the publisher that the item has been delisted. It simply slides away into the darkness.

Nor is it solely private citizens who seek amendment. Since 2009, Irish politicians and government officials have made 65 requests for the removal of 220 items, with three quarters of those supported by a court order. The two examples quoted for Ireland are:

“We received a request from an Irish politician to delist reputable news articles from Google Search based on defamatory content claims. The content was not about the politician; rather, it concerned a convicted murderer who shared the same name. We did not delist the articles for reasons of public interest.

“We received a request from a government official to remove a search result linking to a state-run newspaper article that reported on the official being charged in a U.S. court for battery. We did not remove content in response to this request.”

In the same period, the UK made more than 3,000 requests for the removal of 112,000 items.

The first “right to be forgotten” case to range through the Irish judicial system has involved Mark Savage from Swords, who stood as an Independent in 2014 local elections for north Co Dublin and objected to a thread on Reddit, the social news aggregator, which described him as a “homophobic” candidate. Mr Savage won an order from the Circuit Court that he was entitled to have the information removed from Google’s index.

Both Google and the Data Protection Commissioner appealed to the High Court over matters of law and a three-day appeal was held in May with Mr Justice Michael White

reserving his judgement.

Throughout the land, and further afield, the momentum of data protection, reimagined as “the right to be forgotten” carries a clear and present danger of diminishing and diluting free expression.

Onerous duties will fall on data controllers operating within these fields and the degree to which they understand that the public value of information can alter in time and space when they exercise their duties is questionable. The malleability of digital information makes it tempting to err on the side of caution, particularly when data protection is wrapped up with legal threats and judicial penalties.

At the very least, editors and publishers can expect a further significant increase in the already rising tide of minatory letters which will require a rapid response and additional resources.

And there are legitimate concerns about whether the Data Protection Commission will become involved in arguments amounting to prior restraint on journalism. The potential impact on the currently topical subject of whistleblowers is also a worry.

In the clash between the public interest in knowing and the right to be forgotten, the likelihood is that the “right” will trump the “interest” and the public memory will be diminished accordingly.

That may not carry weight in the crusade to correlate the data protection laws of 28 different countries. But it should. We will be wrestling with its consequences for the next two decades.

While there are provisos within GDPR for “exercising the right of freedom of expression and information” these are untested. Sceptical observers might suggest that such protections have not proved particularly robust in the past and that the notion of harmonising the definition of what “public interest” might mean and it gaining traction across 28 states remains just one more European fantasy.

Two weeks after next year’s introduction of the GDPR it will be the 69th anniversary of the first publication of one of the most famous books in the history of literature, George Orwell’s Nineteen Eighty-Four.

In a work rich with prophetic and sometimes feverish commentary, we would do well to remember one of its more chilling forecasts: “He who controls the past controls the future. He who controls the present controls the past.”

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