The fallout from the recent European court of justice ruling on the "right to be forgotten" has reached far and wide in the past week, prompting an international discussion about how personal information is used online.

Mario Costeja González succeeded in his bid to have two archived newspaper articles removed from Google's search index, securing an apparent victory for those who argue against the hegemony of tech giants. Those denouncing the ruling – spanning the tech industry, free speech advocates, mass media and even Downing Street - have warned that this is bad for the internet, and bad for Europe.

But there is another perspective. A growing number of academics have expressed a more profound and inspiring observation – a recognition that this ruling could eventually lead to the updating of an outmoded legal framework and help make the internet more harmonious than it is today.

The internet is robust, but don’t touch it



The alarmist position generally proceeds as follows: The first and most compelling point is the assertion that the European court failed to balance rights to privacy and personal data against freedom of expression and information.

Second, the ruling is considered hopelessly impractical for intermediaries: an “unprecedented burden”, as the lawyer and free-speech advocate Mark Stephens expressed it.

Third, the argument is embellished with emotive claims about how this ruling will fragment, chill, choke, censor, or somehow damage the internet.

Once these three factors are added to the selection of complaints that Google chose to reveal in the immediate aftermath of the ruling – those from paedophiles, politicians, and physicians - the case appears to be an all-round disaster.

We’ve seen arguments like this before. Freedom, impracticality, fragmentation – these are familiar tropes in debates over internet regulation and governance. If we don’t want to break anything, we should preserve the status quo of the great, unregulated, idiosyncratic, flawed-but-untouchable internet.

The counter-argument is that this position demonstrates a failure of imagination; the sacrificing of creativity to inertia. What if we didn’t just accept the compromises of the internet, but tried to improve or resolve them? Instead of harbouring despicable behaviour that we’d find unacceptable offline, what if the internet became more forgiving and accommodating?

Outdated law can now be bolstered

There are as many points of view as there are academics, but if there was any consensus in their response it was that mainstream coverage of the ruling failed to critically interrogate the industry response, or to understand the complex legal precedent it presents.

The court’s reasons do not explicitly deal with freedom of expression, leading many academics to agree that, in this particular case, the balancing exercise was skewed. “The essential problem with this judgment is that the CJEU concerns itself so much with enforcing the right to privacy, that it forgot that other rights are also applicable,” writes the University of Essex's prof Steve Peers.

Yet most also agree that the fault for this lies mainly with the regime created by the 1995 EU Data Protection Directive. With its roots in the preoccupations and technologies of the 1970s, this instrument is well described by Peers as “prehistoric in internet years”.

Cambridge fellow David Erdos explains that the directive has “always had lofty, and in many ways implausible, ambitions”. It rather missed the memo about life in the Google age, in its zealous fortification of external handling of personal data.

The result, Erdos describes, is that the vision of the "founders of European data protection... is in profound tension with the whole way in which information is disseminated and sought out online including not only by large corporations such as Google but also by hundreds of millions of individuals.”

The court could have read Costeja’s case down. Instead, it called out the great sleeping lie of the routine non-application of data protection law. By doing so, it has provided an essential platform for public debate. The Commission’s current reform proposals present an opportunity to rewrite the law to better accord with expectation and practice, so that there is no longer a need to feign compliance.

Technology is a necessary agent in applying the ruling

In the meantime, however, Google must adapt to this immediate ruling. The alarmists, as well as some academics, call this impractical, invoking that lamentable bulwark of justice: pragmatism.

But if anyone can proactively implement the court’s ruling, Google can. What’s more, it’s right that we rethink the role of Google in society, taking what East Anglia lecturer Paul Bernal terms "a more objective view” that involves thinking “more about the kind of internet we want to have – and how to get it.” As Evgeny Morozov points out, Google is a paragon for the data-hungry. The superficially appealing claim that it should be "uncensored" in satisfying the "right to know" has dangerous implications if we think of banks, insurance companies, and so on.

Google of course has considerably more resources than dowdy data protection offices and, as the court recognised, a significant influence on the lives of many individuals.

The court’s ruling was necessarily light in the detail of practical implementation. However, it is clear that technology-facilitated solutions are the only option if we intend to realise data protection at scale. Google is as good an agent as any in assisting with the task – under close examination, of course, and ensuring that any solutions developed are transparent and interoperable across platforms.

Fragile but important social norms can now be respected



Perhaps the most insidious aspect of the alarmist view is that it completely overlooks the precious and important social values at stake here: a society that respects autonomy and values forgiveness.

As the Harvard professor Jonathan Zittrain writes, there is a real problem with “the internet’s ability to preserve indefinitely all its information about you, no matter how unfortunate or misleading.” Though sometimes this may require removal of content, he suspects that “in many cases, the desire for such a right is merely the desire not to have your life presented to the world mechanistically and without review, with nothing more than a search term and a single click. This is a legitimate desire.”



“Privacy allows us to experiment, make mistakes, and start afresh if we mess up”, writes the University of Chicago professor Eric Posner. “Our children can’t stop their friends (or enemies) from posting drunken photos or a heedless rant, barnacles that will cling to them for years.” Privacy, he argues, “allows us to reinvent ourselves, or at least maintains the valuable illusion that reinvention is possible. It is this potential for rehabilitation, for second chances, that is under assault from Google.”

The ability to let people move on is a deeply-held social value and one that we should exercise graciously. In this case, we’d do well to digest the court’s ruling, to cease the crossfire, and to think creatively about what happens next.

Julia Powles is a researcher in law and technology at the University of Cambridge. Find her on Twitter @juliapowles