Forget me not

As lawyers, we spend immeasurable time and money promoting ourselves, our services and reminding clients that we are here to help them.

We want them to consult us at each stage of a transaction, before a problem becomes a bigger issue and ahead of committing to any big decisions. We email, call, tweet and politely cajole, just to be seen, should an opportunity arise and a client need our assistance. We don't want to be forgotten.

It is against this background of pushing ourselves into the foreground that the decision by the European Court of Justice last week has left many lawyers scratching their heads and asking: who wants to be forgotten?

The decision by the court, permitting Mario Costeja Gonzales to have Google remove a reference to previous financial difficulties from its online search results came as a shock to many. Only last year, the Advocate General made his own opinion on this topic known, which was that, to paraphrase, there is no universal right to be forgotten.

The phrase 'right to be forgotten' is misleading. What we are really talking about
is a right to expunge certain events, references or statements from our personal online histories. Not even that, it is only the ease of access through internet search engines that is being limited.

There is no intention to retrospectively censor newspapers, websites or social media platforms, just to make the access to them a little more, well, restricted. To use an analogy, it's not about destroying the book in the library, but shredding the index card.

The ruling only calls for 'inadequate, irrelevant or no longer relevant' data to be removed from online searches. The responsibility for this, in the first instance, has been put on to Google. What protocols and procedures it will now put in place to manage the huge number of requests it is already receiving globally is yet to be seen, but the response will have to be fast.

The decision raises many questions. However, Wikipedia founder Jimmy Wales has called this an 'astonishing' decision and like many others does not believe it will stand for long. Until there is legislative change, however, it is difficult to believe that the decision will be overturned in the near future. The ruling stands for now and it will be up to the courts, ultimately, to determine which cases succeed.

Will this be a new stream of work for lawyers, asked to take up the cause of maligned clients, or will it be left to the Information Commissioner's Office? I anticipate that it will be the latter, but if the definition of 'search engine' broadens in the future, it could soon be the case that any business website, blog or social media platform will be responsible for its content and the individuals identified on it.

Whether we should be celebrating this decision as a step towards individual empowerment, a victory for David over Google's Goliath or commiserating that the ease of access to public information has been infringed remains to be seen. Foolish mistakes of the past may be more easily brushed over, but is this in the public interest and should Google be responsible for the first tier
of regulation?

In light of the decision that 'inadequate' and 'irrelevant' data should be struck from the record once requested, we could soon see a fall in the number of referrals to the Daily Mail website. We might also see all traces of Engelbert Humperdinck's performance at the 2012 Eurovision Song Contest erased from history. How that helps us as lawyers I don't know, but on that basis the decision can't be all bad, can it?

Kevin Poulter is editor at large of Solicitors Journal

@SJ_Weekly

editorial@solicitorsjournal.co.uk