Last month, around the same time the European High Court ruled that Europeans had a “right to be forgotten” by the search engine Google, a man named Tim Barefield approached me with the following story.
Barefield’s brother, Robert, and Robert’s partner, Stephen, were vacationing in Cambodia this year. On the day they visited Angkor Wat, something terrible happened to Stephen: Near the top of the temple, he suddenly fell over backward and died.
The next 48 hours were pure hell: It took so long for an ambulance to show up that other tourists wound up risking their own lives to get his body down the steep side of the temple. The next day, after Stephen’s body had been taken to a local hospital, Robert was grilled by the police and was even told that prosecutors might have to be called in. It took a US$1,500 bribe to get his late partner’s body released to the US embassy.
A few months later, back in Connecticut, Robert searched his partner’s name on Google; he wanted to read some of the tributes friends had written on an obituary site. Instead, he was confronted with an awful photograph of Stephen’s body in the hospital morgue, his belly bloated, with a cotton swab in one of his nostrils.
The picture, Robert believes, was taken by a policeman and then either given or sold to a Cambodian Web site. Google had then linked to the Web site.
“I was in shock after Stephen died in Cambodia,” Robert later told me. “When I saw that picture, I went into shock again.”
Thus began the next part of his ordeal. His brother Tim knew someone who used to work at Google, so he sent her an e-mail explaining the situation; she in turn sent it on to a Google executive who suggested that the Barefields try to get the Cambodian Web site to take down the photograph.
They did so, to no avail.
They used search optimization techniques, trying to at least push the picture off Google’s first page. It worked, but only temporarily; to this day, when you perform a Google image search, it pops up, jarringly, among several dozen happier images of Stephen.
Meanwhile, the exchanges with the Google executive, Craig Scott, went nowhere. He expressed his sympathy, but Google’s position was firm: There was nothing it could do.
All of which raised, in the Barefields’ minds, a simple question: What real harm would be caused by delinking that picture — a photograph that had zero value to anyone, was not in any way newsworthy, but inflicted a great deal of pain on those, like Robert, who had known and loved Stephen?
With all the discussion about the right to be forgotten, it is a timely question. From a US perspective, the European right to be forgotten seems overly broad — an infringement on the right to free speech.
However, different rights knock up against the right to free speech all the time.
“We routinely seal juvenile records,” said Marc Rotenberg, president of the Electronic Privacy Information Center.
Newspapers sometimes withhold sensitive information or graphic photographs.
A few years ago, Google itself replaced an image in Google Maps after a father realized that it showed his son, who had been shot and killed.
When I asked Google why it was so adamant about not delinking material, even material that had no public-interest value, I was told that it was because Google merely reflected what was on the Internet. It removed only what it was legally obliged to, such as copyrighted material.
This surely cannot be the final word. Google also told me that with the privacy concerns raised by the right to be forgotten, it was forming a committee, made up mostly of non-Google hands, to explore how it should approach requests like, well, the one made by the Barefields.
When I was talking to Rotenberg, he pointed me to an interesting case that had taken place in 2001. NASCAR great Dale Earnhardt had died in a crash that February at the Daytona 500. Earnhardt’s widow, Teresa, sued to prevent the release of his autopsy photos, claiming that their release would violate her privacy.
The Orlando Sentinel, conducting its own investigation into the cause of Earnhardt’s death, wanted to see the photos, which it had a right to under the state’s public record law.
In the end, the newspaper and Teresa Earnhardt negotiated a deal in which a third-party expert was allowed to view the autopsy photos and answer questions put to him by the Sentinel. The paper got its answers, and the public interest was satisfied, but the autopsy pictures were never released to the wider world.
If common sense solutions like this can be found in the analog world, surely they can be found in the digital universe as well.
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