Translator: Michelle Apps Reviewer: Ellen Maloney
Ten years ago I finished high school
and like many young people
I went to 'Schoolies' or 'Leavers' as it is known
in the great state of Western Australia.
And after studying like an absolute pig, I was determined to have fun.
And fun I had.
I had the best fun of my entire life.
Maybe too much fun because I did a lot of dodgy, embarrassing stuff.
Fortunately though, there is little evidence of my misdeeds,
other than in my memories of mine and my friends
I was only able to find one photo of my Leavers experience.`
Here it is. I'm licking a lemon
It's pretty tame compared to modern standards.
The Schoolies who are there now, they face a different scenario
because the internet as we know it has changed so much in ten years.
Facebook was just a seedling when I was in year 12,
and I didn't have a camera phone or a 'phone' as it's called now,
even when I was at Schoolies.
So, the internet has changed a lot in these ten years
and so too has our understanding of privacy.
Millions of people around the world, many n this room, myself included,
we're sharing personal information online voluntarily.
So we're more open.
On the other hand, recently some bad things have happened.
There have been hacks, breaches and leaks
Manning and Snowden showed us the true cost
of engaging on the internet in the 21st century.
Mark Zuckerberg, has made another cover of the Time Magazine this week.
Good on you Mark, you've done well.
And he's good at making headlines, Mr Zuckerberg.
Once upon a time he told us that privacy is no longer a social norm.
But I question that, that's questionable.
So activity time, we're all about interaction here at TEDx.
Here's an activity and it's really fun.
Imagine the worst moment of your entire life. How fun is that?
So it could be a massive mistake, something you really regret,
when you think about it you cringe or maybe something terrible
happened to you and you just don't want to think about it ever again.
Now imagine that that horrible moment is recorded or recounted
and placed on the internet.
For some of you, this is already reality
And the internet is full of the worst moments of many peoples lives.
And once those terrible moments find their way online
it's so hard to get them back.
Because it's so easy to copy and it's so easy to share.
And the internet has an almost unlimited searching and memory capacity.
One academic calls this, "The problem of digital eternity."
So what should we do about digital eternity? Do we need to do anything?
Well Europe says we should,
or more specifically the European Union says we should,
and this response is a law called 'the right to be forgotten.'
Today I am going to explain this law and set out my response to it.
And I am doing that
because I think it's
something that every internet user should know about.
This Mario Costeja Gonzalez.
He's a Spanish guy and ten years ago he defaulted on some debts,
and his house was repossessed.
After repossession it was put up for sale and a newspaper ran a little ad
saying that this house was for sale and it also explained why
and it named this guy by name.
So the newspaper, as newspapers do, it put this hard-copy as
also on its online platform so if you google Mr Gonzalez' name
it would take you to this ad.
Ten years later, he's not defaulting on debts anymore
and Mr Gonzalez wants put it behind him.
So he approaches the newspaper
and says, "Please take it down,"
and they tell him to get stuffed.
So he gets litigious and he takes Google, of all entities, to court.
It goes through the Spanish legal system up to the European Court of Justice.
And in a massive moment
the Court of Justice effectively held that Gonzalez would win.
But it interpreted a really broader point.
The Court held that an individual in the European Union
has a right to privacy, and in accordance with that right,
he or she can request of an internet search provider, like Google or Bing,
to remove information or remove links rather,
which link to personal or private information.
And Google or Bing, must comply, must remove that content
if the private information is inadequate, irrelevant,
no longer relevant, or excessive.
So this is a huge decision and a lot of legal nerds, like me,
were frothing over it and getting very upset
because essentially the European Court of Justice
held that the right to privacy overrides other fundamental rights.
And this is what we mean when we say that that decision affirmed
the right to be forgotten.
As I've said, this case has really divided sorts of communities,
and it crosses political left-right lines.
It's a really difficult balance, because on the one hand
the right to be forgotten protects the right to privacy.
We all can agree that a little bit of privacy is a good idea.
We're not handling out our email passwords for a reason.
Maybe Mr Gonzalez deserves a fresh start.
But on the other hand, if you enforce this right to be forgotten
you're essentially airbrushing the internet,
you're denying the public access to information.
And access to information is one of the reasons why the internet
is such a good facilitator of public debate.
It's an essential component of our democracy.
But less than that lofty level, I like access to information
on the internet because it stops me me from doing dumb stuff
like going to a terrible restaurant.
So tonight when you are go out for dinner and you want to decide where to go,
If more than 50% of people on Urbanspoon say X Restaurant tastes like dog food,
well maybe you won't go.
So access to information makes our lives better
but privacy makes our lives better too.
And it's a hard balance and it's a hard call to make.
But the EU, it's made that call clearly,
and it favours privacy over access to information.
So I ask you, is this desirable?
Do you think the right to be forgotten is a good idea?
Some of you will say yes, there's lots of people who are a fan of this
and others will say no and I'm not going to tell you which is right
or wrong because no one is really right or wrong on this.
Instead I am going to make a different point and that is,
no matter how good this balance sounds, no matter how good it is in theory,
in practice, the right to be forgotten cannot be effectively implemented
and so it makes for bad law.
Let me explain why.
So since the end of May when this decision happened
I mean May, 2014, effectively the start of June,
Google has faced a tsunami of people having a whinge on the internet.
It's had over 180,000 unique requests for removals, and that relates
to over 640,000 URLs and it's acceded to 59% of requests.
So that is a huge, huge burden and it takes on that burden internally.
It's Google staff making the call.
One of the reasons why I take issue with this right to be forgotten
is that it is a massive shift of a burden, because what is needed
for human rights protection is someone to enforce it and usually
that is done by an independent body, branch of government, like a court.
But here you have that governmental burden and its shifted onto a corporation.
And you might say, well isn't it a corporation's externality,
shouldn't they be responsible for it?
That's a fair point, but I remind you what Google is.
I love Google, it's the best thing ever, I'm on Google Drive
everyday saving my nerd papers.
But no matter how good a public utility Google is, at the end of the day
it's a company and companies are driven by profit
and one of the ways you increase profit is you lower costs,
the right to be forgotten is a cost.
So put yourself in Google's shoes, say you have this burden of enforcing
a right to be forgotten and you're faced with difficult decisions
as to whether or not a case is excluded, or it's okay.
If you're driven by a profit motive then in hard cases,
you might just say let's be cautious, let's be risk adverse.
(Boing) We delete the link.
So in that way, the profit motive of Google clouds the enforcement
of human rights and Google doesn't want this responsibility.
It's gone on a roadshow and people are calling it an actual Google roadshow.
It's going around Europe saying, "We've got a terrible legal problem,
this really sucks, poor Google."
So we should kind of feel sorry for Google.
They don't want to do this, they're burdened with it.
But on the other hand it's silly
At the end of the day, I see the right to be forgotten as a failure
because it is a domestic response, albeit one from a united
European continent, to a truly global issue.
The right to be forgotten is EU law, just one little part of the world.
But the internet is everywhere.
So I'll explain a little bit more how this right to be forgotten works.
When Google makes it's decision to remove content,
it's only the link that comes down and the source content remains.
So if you are clever, you can find it anyway by either typing
in the URL or using a different search or some other way;
there's lots of ways to get to the info.
And the link that is taken down is only the European link.
It's only the European link.
Imagine this, you're backpacking, you're in London in a mate's bedroom
sleeping on the ground, on your laptop
and want to learn about Mr Gonzalez.
You type some keywords into google.co.uk, which is the British Google.
Well those results may be airbrushed, they're not there.
So you say, I want to get around this.
You just type in google.com, the American Google, or
google.com.au, the Australian Google.
And type in the same search terms and you'll get different results
which take you to exactly where you want to go.
And you might ask in your head right now, that can't be right,
that sounds so stupid.
And, unfortunately it can be right, and it is that stupid
and Europe is being really stupid and it knows it's being stupid.
(Laughter)
Last week a working party of the European Union issued
a kind of a directive and it told search providers like Google,
"Hey guys, this isn't working, you have to change it so it works."
It said you have to amend the American, the Australian,
every other Google so it can't be got around.
You might think, that's a reasonable response to the problem.
But it's really not, because what they are saying is that EU
law should apply everywhere.
Well Europe, that is a pretty big call and that is pretty cheeky.
And it's not going to happen because, America.
(Laughter)
(Applause)
Because, no matter how global the internet is, it's beating heart
lives in America and a pile of money and American's love their
freedom of speech and their first amendment far too much.
It's not just the Yanks who don't like this right to be forgotten,
the Brits hate it too.
Take the BBC, classic Brits with their funny teeth, they're great people.
But, the BBC News has declared war on the right to be forgotten.
It has said, every time you remove a link to one of our articles,
we're making a list and putting it on the internet
so stuff you, European Union.
So if this is how the grown-ups are chucking wobblies
you can only imagine how the neckbeards of Anonymous are going to respond to it.
So the core objection to the right to be forgotten
is that no matter how hard Europe pushes on the internet,
the internet will push back harder.
We've seen it before in China,
It's got it's great firewall in China.
My mates in Beijing, they just get their bloody proxy, get around it
and poke me on Facebook.
It finds a way.
And then you've got George Brandis.
Not matter how cross he gets at international property law breaches.
Well, we're the most prolific consumers of pirated digital media in the world,
because nothing is getting between us and Game of Thrones, nothing!
(Laughter)
The internet of the 21st century, it's almost a Hobbesian state of nature.
And nature, like life, finds a way.
So despite all of this, some scholars and lawmakers are still
questioning whether we need a right to be forgotten.
And some say yes, they it's good, it protects privacy and autonomy.
And they say further that forgetting is an important part of
being a human being.
Because forgetting helps us forgive and forgiveness is important.
And they say, an eternal internet is a bad thing because it is unnatural.
But to them I say this, you know what else is unnatural?
Aeroplanes, video games, blue Powerade, ice-cream for everywhere except Canada,
Sega Mega Drive 2.
All the best things are unnatural.
So just because something is unnatural doesn't mean it's not a good thing.
I think it's a great thing.
What is the area of Australia?
On what year was Gough Whitlam born?
And how do I make a nice rainbow cake?
Once upon a time if you could respond to this in a relatively quick fashion,
you'd be labelled a freak, or a genius, or a freaky genius.
But today you'd be labelled a dude with thumbs and a phone.
(Laughter)
Because the internet has literally extended our minds,
as some philosophers would say.
It has made us faster, better, stronger, more productive and better at quiz nights.
(Laughter)
The internet has made us better, we're better at remembering.
But remembering can be hard.
While I was writing this speech, another massive example came up.
A little over a week ago, Phil Hughes passed away and the country mourned.
And part of the reason why the event had such a massive impact
is that so many of us enjoy cricket and so many of us play.
Anyone batting could cop a ball in the wrong spot and it's over.
And anyone whose bowling could deliver a bouncer
and it ends in a tragedy.
So in the context of us trying to deal with that tragedy,
people were looking at the bowler,
Sean Abbott, and everyone was getting around him
saying he did nothing wrong
because he didn't do anything wrong.
In that discussion, cricket commentator and Queensland legend, Ian Healy,
he said in the media, "We should stop naming Sean Abbott in the media,
we should stop naming him on Twitter."
A lot of people agreed and said this guy should just be able
to get on with life without this hanging over him.
And this is a really poignant example of probably the strongest case for
the right to be forgotten or
maybe it is one of those cases where it really divides people.
And in trying to find my position on this example I question,
do we need to forget in order to forgive?
Some people say that we do, they say that forgetting provides a space
for changing your mind and finding redemption.
And that's a fair position to take.
On the other hand, just because forgetting and forgiving
usually go together doesn't mean they have to go together.
And this case is a perfect example of that.
Because everyone was naming Sean Abbott in the media,
and everyone forgave him with their eyes open.
They chose to forgive.
The principles of autonomy and self-determination,
they really underpin why the right to be forgotten is so powerful.
But these values only mean something because of the metaphysical
proposition that we have free will, we have choice.
So when things happen we can choose.
When accidents happen, we can choose to forgive.
And when embarrassing things happen, we can choose to forget.
And free will, that great gift, that essential condition of our humanity.
It's going to be more and more important as time goes on.
Because the internet will continue, technology will get better and better
and it'll be even harder to forget.
So I think this is the wrong question.
Because it doesn't matter whether we need to forget in order to forgive
because we can't forget,
but we need to forgive because it's part of human nature.
But I'm confident that nature will find a way.
Thank you.
(Applause) (Cheers)