As a result Google and the media are in an unholy, and very successful, alliance to blacken the name of a simple consumer right. Google feeds scare stories about obviously apalling take downs they have made to the media (see also myth 3 below) and the media gleefully publicise them. As of yesterday, Wikimedia have also got in on this act, so successfully that one Independent piece manages to suggest that the right to be forgotten is giving apes the right to take down their selfies from Wikipedia. (Next: dolphins ask for their image to be taken off John West tuna cans.)
Finally, both existing and new law recognise the rights of journalists to report on the public record by giving them exemption from DP law almost entirely. Google argued it was a journalist in the Google Spain case, and failed: but for conventional media , the right to be forgotten is simply not a threat. (Arguably it might even be good for it to incentivise journalists to investigate more using professional skills, and rely on flaky Google and Wikipedia data less.)
One, it might be hypothesised that Google are occasionally ignoring the clear instructions of the court to take the public record into account, and sometimes allowing delinking when they should have refused, so as to generate scare take down stories that discredit the right to be forgotten. On this, like Francis Urquart in House of Cards, I couldn’t possibly comment.
Second, there is a popular misconception that any Google takedown means the content disappears from the Web. This again is a myth that needs shot. First, the content stays up on the original page – only the link disappears. This is obvious, though often ignored. But, secondly, and rather more subtly, only the link from the name of the person making the take down request to the story that name appears in disappears.
So, in one of the much publicised Guardian stories allegedly removed by Google, it turned out the person making the erasure request was not the public figure the article was about (let’s say X), but an obscure person who’d been named in comments (let’s call him/her Y). You say, but the article still disappears, right? No. Only if you search on Y, will the link not come up. A journalist searching on X (as is rather more likely) however would still find the information right there. (And since I can find numerous stories about Adam Osborne’s Muslim wedding on page 1 of the Google results by searching on “Adam Osborne Muslim”, including the original 2011 Guardian story, it looks quite likely that’s what was going on there.)
What people are waking up to, and are rightly horrified at, is that the world as delivered by Facebook or Google is not the “real” world (whatever that means) they thought they saw. Google’s algorithm already arguably dispatches search competitors to the lurking bowels of its search results, while FB famously gamed their Newsfeed algorithm to make people feel happier. In this new world of a curated or constructed digital world, the right to be forgotten is the tiniest tip of the iceberg-sized issue.