How A Right To Be Forgotten Stifles A Free Press And Free Expression

from the it's-not-like-we-didn't-warn-you dept

Thankfully, recently, the EU’s Court of Justice, has limited the scope of the “right to be forgotten,” so that sites can’t be forced to censor content outside of the EU. However, it still does apply within the EU, and that has real and significant consequences.

Just last week we received yet another notification from Google that one of our articles had been removed from certain (unrevealed) search results in Europe, due to a successful “right to be forgotten” petition. This is hardly the first time this has happened, though at least this time it’s not about the one guy who has sent a new RTBF demand every time we write about him. We’re still trying to figure out what to do with the latest one, which appears (like so many) to be someone who was convicted of a crime (in this particular case, counterfeiting) who is apparently upset that his name and past crimes come up in a search.

We had warned about this years ago, highlighting how a short-sighted attempt to deal with “privacy” would collide head on with free speech and a free press — and for the most part we were ignored. However, the NY Times has a fairly astounding story about how a RTBF demand from a guy who stabbed his own brother and wanted to hide the resulting press stories more or less bankrupted the publication that had the story:

One of those demands was from Vittorio Pecoraro, now in his 80s, who was stabbed by his brother, Umberto, in the 2008 seaside restaurant brawl. The brothers were arrested after the fight. Assault-related charges against Vittorio Pecoraro were effectively dropped when the authorities did not pursue them.

Vittorio Pecoraro sued Mr. Biancardi, citing the right to be forgotten. Mr. Biancardi refused to remove the article. The story had been based on information from the police, he said. Nothing was factually wrong.

But Vittorio Pecoraro argued that his privacy had been violated. The article was easily available and searchable online, and he had not been convicted of a crime. Yet because of PrimaDaNoi, what he considered a humiliating family argument had become the first thing that many people knew about him and his pizza and seafood restaurant, he said.

?I have a reputation, I have been here for 50 years, I am known all over,? Mr. Pecoraro said in an interview at the restaurant, Positano, where the 2008 fight had occurred.

As the article notes, a court ruled that the site, PrimaDaNoi, had to delete the stabbing story (this is pre-GDPR, under the older concept of the Right to be Forgotten in the EU). The author/publisher was also told to pay €10,000 for “harming the reputation” of Mr. Pecoraro. Biancardi appealed, but lost.

The article notes that this and some of Biancardi’s other attempts to fight off RTBF requests only seemed to attract more demands and more lawsuits. And it basically destroyed him and his news site:

By last year, Mr. Biancardi stopped fighting the takedown requests. The cost wasn?t worth it, he decided, and he deleted almost every article that people demanded. He lost weight and wasn?t sleeping.

Last September, exactly 13 years after starting PrimaDaNoi, he shut down the site.

Having faced tons of legal threats (and one very long and exhausting legal dispute ourselves) I can empathize with Biancardi. At times, the stress, annoyance and costs just don’t seem worth it. But, of course, in such situations, it means that those who want to censor negative press about themselves will succeed in their ultimate goal: to suppress information. And that’s a very troubling scenario as well.

The article quotes Daphne Keller, who we’ve quoted many times here at Techdirt, and whose been on our podcast frequently as well, calling this “mission creep”:

?There has been real mission creep with the right to be forgotten,? said Daphne Keller, a lawyer at Stanford University?s Center for Internet and Society. ?First it was supposed to be about information found using search engines, but now we see it affecting news reporting.?

Of course, some will argue that there’s no mission creep at all here. Many insisted that this was really about privacy and search engines and “data protection.” But plenty of people had to know how this would turn out in the end, with news stories being disappeared. Indeed, folks like Daphne were among the leading voices warning EU policy makers of this kind of result. But it didn’t work. And now we have this terrible situation that doesn’t actually protect “privacy” at all — but does mean that a free press is regularly stifled.

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Comments on “How A Right To Be Forgotten Stifles A Free Press And Free Expression”

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39 Comments
That One Guy (profile) says:

Re: Re:

I prefer ‘Right to Re-Write History’, as it allows people to remove records of what happened, leaving nothing but faulty memory as evidence to fade away.

Before ‘Right to re-write history’ order: X happened, here’s the evidence showing what happened and how.

After ‘Right to re-write history’ order: X happened, but good luck finding evidence to back that up, and nothing prevents those involved from simply claiming otherwise or spinning their own story to suit them.

Jason says:

“I have a reputation, I have been here for 50 years, I am known all over,” Mr. Pecoraro said in an interview at the restaurant, Positano, where the 2008 fight had occurred.

Funny how concerned people are about their reputation after something stupid they do becomes public knowledge, instead of considering the potential reputational harm before, say, [checks notes] getting in to a knife fight with one’s brother in a public place.

Vermont IP Lawyer (profile) says:

Right to be Forgotten

Have just read an article by a European lawyer saying that the EUCJ ruling limiting extra-territorial enforcement isn’t as limiting as first appeared. I am not yet sure I understand the details of the analysis. Separately, there is a new, non-appealable, EUCJJ ruling that allows extra-territorial enforcement. Details are here: http://www.abajournal.com/news/article/top-european-union-court-rules-facebook-can-be-ordered-to-remove-defamatory-content-worldwide. Truly scary.

TFG says:

Re: Re: Re: Re:

Have you considered the possibility that the set of people that has issues with Google includes TechDirt, and that the AC you are responding to is responding to an AC espousing a viewpoint (keyword: "Daddy Google") held by a small group of commenters who absolutely do fit into that same easily demonized group of jackasses (due to their own actions) that the OP’s words associated themselves with?

Anonymous Coward says:

Re: Re: Re: Re:

Neither does everyone who downloads a free file off the Internet does so solely for the avoidance of payment. See Adobe pulling support of its Creative Cloud in Venezuela.

But here’s something you might not have recognized: people get tarred with the same brush regardless. It’s called being a part of human society. Some of us deal with it, some of us talk about it within our groups and try to change for the better, others like you piss and moan because you can’t be fucked to handle guilt by association like you inflicted on everyone else.

Bitching about Google is more linked to Donald Trump instead of Elizabeth Warren because his army of fucknuggets decided to use Project Veritas as a credible source. That’s on you, not me, to fix your shitty PR. Because all you anti-Google people can come up with is, for some reason, to take the powers Google has (which are worth being concerned over, to be fair) and hand them to some other power-mad asshole like Ajit Pai or Cary Sherman.

Dave P. says:

Re: Re:

Please explain the f-ck-ng connection to the article, you useless pile of excrement. Forget THAT, if you will. Do something useful with your life, like contributing your body to science – preferably whilst still alive, or deposit yourself in the nearest rubbish land-fill site, as that’s pretty comparable to the "contribution" (I use the world loosely) you make to TD.

That One Guy (profile) says:

'How dare they point out what actually happened!'

“I have a reputation, I have been here for 50 years, I am known all over,” Mr. Pecoraro said in an interview at the restaurant, Positano, where the 2008 fight had occurred.

And thanks to your actions that reputation includes ‘stab happy’. If you didn’t want that to be known maybe don’t stab your brother in a brawl?

The author/publisher was also told to pay €10,000 for "harming the reputation" of Mr. Pecoraro.

That part is particularly rich, and it’s no wonder politicians would love a bill that allows something like that. Someone do something bad and you point it out so more people know? You are on the hook for ‘harming their reputation’, rather than the person who actually did the act.

Wendy Cockcroft (profile) says:

Re: 'How dare they point out what actually happened!'

Agreed. You and you alone are responsible for your reputation.

If you behave badly and someone points it out, AND it’s proven to be factually true, tough. If you want to rehabilitate your reputation, do what you can to create a positive image of yourself and don’t get defensive if your past conduct is brought up. Showing how you moved on is a positive thing and will be viewed in a positive way.

If what’s being said is NOT true, post a rebuttal and move on. Your own conduct reveals who you really are. I’ve lived this.

bhull242 (profile) says:

Re: Re: Re: Finally, bad censorship

Please explain where one would get the idea that “the tech media loves all censorship”, especially when this tech media site has repeatedly complained about using ToSs, DMCA complaints and SLAPP suits to censor people, and have criticized companies who allow governments to bully them into censoring speech the governments don’t like.

Also, Toom1275 was joking by suggesting that there is no evidence that Zof was beginning to think at all, not arguing against Zof’s point. Not that I think they agree with Zof’s comment, but that wasn’t their point.

Toom1275 says:

Re: Re: Re:2 Finally, bad censorship

Also, Toom1275 was joking by suggesting that there is no evidence that Zof was beginning to think at all

Bingo.
Evidence of such would consist of Zof doing something other than popping up to shitpost his mindless parroting of the irrelevant right-wing conspiracy propaganda talking point of the day ("1000 pages!" "tech companies like censorship!" "cancel culture!" "no collusion!" "Russia dindu nuffin!" "Fake news!") And show some some semblance of actual rational, independent thought.

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