Among the many controversies roiling our digital information spaces these days, content restrictions are undoubtedly the most hotly debated. Equally important, however, are decisions about the extent to which content is searchable once it is there. After all, in our digital age, if you can’t find something online, for practical purposes it’s as if it’s not even there.
In 2018, CIMA published Information Not Found, a report that examined how the so-called “right to be forgotten” threatened the ability of journalists to research and investigate public interest news stories. The “right to be forgotten” refers to the removal of content from search engine indexes so that it is not readily accessible to the average user. It emerged out of a European legal tradition that favors the privacy of non-public individuals, and in practice it allows users to demand that search engines remove old, inaccurate or even just irrelevant data from their results.
Now that “right to be forgotten” laws have been in place for several years in parts of the world, most notably the European Union, it is time to take stock. What have we learned and where this type of regulation headed?
It doesn’t take a wild imagination to begin considering how this type of policy could be abused by less than democratic regimes looking to crack down on press freedom and access to information. Even in well-established democracies, powerful individuals can use their clout to sanitize their digital record by asking that certain stories be removed from search results. At the same time, attending to the privacy concerns of regular citizens may have merit and shouldn’t be entirely discarded in a knee-jerk reflex to defend press freedom.
Fortunately, high-level courts in a couple of different countries have recently placed limits on the “right to be forgotten” that acknowledge the important role news and information play in society. Moreover, a few newspapers in the United States are pioneering initiatives that offer a solution that attends to both privacy concerns as well as the outlets’ editorial independence. These new initiatives offer valuable insights for news outlets around the globe that want to respond to meaningfully to a heightened global interest in privacy online.
Scrubbing News Content from the Web?
In the immediate wake of the 2014 European Union Court of Justice ruling in favor of the “right to be forgotten,” tech companies such as Google were inundated with requests to remove content from search results. Since that time Google has received requests to remove over four million webpages from its search results. Twenty percent of requests have been aimed at content from news sites.
In a handful of cases, media outlets themselves were ordered by judges to remove news stories from their websites based on the new jurisprudence. Perhaps more worrying was how this new legal theory developed in Europe would be applied in other contexts around the globe, especially in countries with a history of trying to censor content online. Would this new “right” be expanded and abused to conceal public interest information?
Indeed, initially the scope of the right to be forgotten seemed to be slowly expanding. A ruling in Spain by the Constitutional Court in 2018 definitively expanded the scope of the law to include the search engines of media outlets and other historical archives. In Brazil, a 2018 ruling mandated the removal from search results of a news story in search results on allegation of a fraud by a state judge. In 2016, Italy’s highest court ruled that all news articles published online would be subject to the right to be forgotten two years after publishing, as they would then no longer be timely, and thus no longer news.
In another high-profile case in Italy, the Supreme Court ruled against a local news outlet that refused to delete from its website what all sides agreed was an accurate story about a violent assault at a restaurant. Costs associated with the litigation were the primary factor in the news outlet shutting down permanently.
Rather than upholding the privacy of non-public individuals, these rulings suggested that courts would allow a much more expansive understanding of the policy, one that would not be entirely compatible with press freedom and editorial independence.
More recently, however, a more nuanced approach appears to be taking shape. In July 2020, Germany’s highest court rejected an appeal from the manager of a former charity who had requested that links to critical stories about his management be removed from search engines. The court declared that the right to privacy must always be balanced with other fundamental rights, such as the right to access information. In Brazil, in February 2021, the Supreme Court overturned prior rulings and ruled that the right to be forgotten is not a fundamental right, and therefore would not supersede other rights like freedom of expression. Both courts determined that news outlets have a duty to portray high-profile events of public relevance, and that such stories are effectively in the public domain.
Curating the Digital Public Record: News Outlets Innovate New Processes
While a ham-handed or even malign implementation of the “right to be forgotten” can directly threaten press freedom, the experience so far also brought to light genuine cases where search results harmed non-public individuals. With that in mind, several news outlets have created new processes to allow individuals to request mention of their name be largely hidden in search results and/or archives.
In January, the Boston Globe, one of the largest newspapers in the United States, launched its Fresh Start initiative. The newspaper will accept petitions from individuals via an online form. A committee of 10 journalists “will convene monthly to discuss, holding a particularly high standard for serious crimes and those committed by public figures. In some cases, the editors may decide to remove someone’s name; in others, to [remove] the article from search engines.” Ultimately all decisions about what to do will be made by editorial staff.
Part of the impetus behind the Boston Globe’s initiative is the realization that racially biased policing practices in the United States may have resulted in news stories that now “follow” individuals around online, and effectively constitute ongoing harm. However, this process clearly has much broader use cases and it is not hard to imagine other valid scenarios that the paper’s editorial team may accept as an acceptable rationale to take action.
While the Boston Globe has attracted attention for this initiative, in large part because of its size and influence in the field, it is not the first to implement this type of process. For example, the Plain Dealer in Cleveland began a program in 2018, and since then has received hundreds of requests, of which it has approved roughly eighty percent. Other newspapers that have started similar programs include the Atlanta Constitution Journal and the Bangor Daily News. Given current trends, it would not be surprising to see this type of mechanism soon becoming commonplace in US media outlets.
Implications for Global Media Development
Pundits often refer to news as the “first rough draft of history.” But whereas in the past tracking down an old newspaper article from even a couple months prior could be challenging, now hundreds of years of archives are essentially available at our fingertips. It’s undeniable that our relationship with the news is different than it once was. Therefore, it makes sense that news organizations are adapting by enabling individuals to make reasonable requests to have stories either updated or even removed from search results based on certain factors.
What stands out about efforts like the Boston Globe’s Fresh Start initiative is that all decisions will be made internally by the news organizations based on journalistic principles. This is a marked difference from the way that the right to be forgotten has been implemented in the past, where the onus has been placed on tech platforms, like Google, to deindex results—a content moderation task that tech companies are not well-equipped to perform.
Just because news outlets are in charge, however, does not mean it will necessarily be easy. Organizations must set out some clear guidelines about what modifications they are willing to make. This way they can avoid being pressured by governments or swayed by influential individuals.
So far, these experiments have taken place in US newsrooms. Will they be replicated in news organizations in other countries? It’s too soon to tell whether this trend will catch on in other contexts. Given the precarious state of many media outlets worldwide, it’s unclear whether many independent outlets will have the time and resources to invest in this type of initiative at all. Ultimately, however, by building out this capacity, news outlets can also further demonstrate the extent to which they take their public interest role seriously and do so in a way that builds rapport and trust with their readers.
Daniel O’Maley is the Deputy Editor and Digital Policy Specialist at the Center for International Media Assistance. Follow him on Twitter at @domaley.