Could naked celebrity pictures bring about a global right to be forgotten?

Before you say anything, no, I know not to leave my computer sitting out logged in to all my accounts. I have it set up so after a few minutes of inactivity it automatically switches to my brother's.

Much has been written about the security and gender issues surrounding the leak of naked celebrity pictures taken from cloud services. Similarly, much has been said about the CJEU ruling on the so-called “right to be forgotten”.  However, I am surprised that not many have made a connection between the two. You could be forgiven for thinking that I am clutching at straws, but I believe that both events are inextricably linked, and it is only the narrative adopted by most press coverage and commentators that has stopped the relation to have been missed by most people.

The coverage of the right to be forgotten (RTBF) has been surprisingly negative. While I move in the type of academic circles that have welcomed the ruling, quite a lot of commentary in the press and US academia has heavily criticised the decision. This is a topic that once more unearths the growing chasm between the US and Europe when it comes to the interaction between privacy and free speech, with US commentators almost unilaterally seeing the RTBF as an infringement on free speech. It also helps that Google opposes the new European interpretation of data protection, and this has allowed the naysayers to get a more prominent voice (after all, we have learned that Google is one of the world’s top lobbying spenders). Similarly, there is an ongoing negative narrative about the RTBF in various mailing lists and international blogs and forums; such as, one widely-shared article by Eduardo Bertoni even calls the ruling as an insult to Latin American history.

The problem is that people seem to be completely misreading the narrow scope of the right. As a Latin American, I understand the political power of remembrance, particularly in countries that housed secretive and repressive regimes where people were “erased” from history. But I also understand that the RTBF does not deal in any shape or form with such charged material. There has been a rush to assume that the right will be misused by child molesters, criminals, fraudsters and despots to bury information that should never be forgotten. But that is not what the ruling says at all, or even remotely implies. The right mostly covers the type of information that is liable to affect significantly “the fundamental rights to privacy and to the protection of personal data”, and it specifically mentions that the court seeks to have a fair balance between those rights and the public’s right to access information. In fact, a big part of the debate so far has been tinted by ignoring the wording of the ruling. Personally, I still have not decided whether I like the RTBF, but I am willing to see how things develop in the next couple of years.

So, what does this have to do with naked celebrity pictures? The interesting thing about that incident is that it has led to one of the most widespread website cleaning exercises in Internet history. While it is true that the pictures were easily available during the first few days of the leak in sites like 4chan and Reddit, they have been removed from most mainstream sources. As I am writing this I set out to try to find any of the pictures in publicly accessible sites just using Google, and page after page of results had news sites reporting on the leak, with few advertising selling celebrity nude pictures, but I could not find any hosting of the offending content. (Note to self: clean search and browsing history, and have a shower).

What has happened is that sites have agreed to unilaterally remove content, with Reddit even going as far as issuing a confused statement about freedom of speech. Sites across the web have either removed the pictures, or been forced to by a combination of legal threats and public outrage. Everyone with any sense of decency will understand that the hacking and leaking of these pictures is an affront to basic human right of privacy. This is precisely why there has been such a reaction to remove the content up to a level where they are not easy to find. I am sure that they are easily available in countless sites in the seedier underbelly of the Web, and that it will be impossible to make the pictures go away for good. But intermediaries have removed links to the content, with sites like Google reporting that they have gotten rid of thousands of links and real content.

This is a good thing.

But isn’t this precisely what advocates in favour of the right to be forgotten are asking for? Isn’t this really what the CJEU says in their decision? The point is that the content may or may not be removed, the idea is to remove links to the content which pose a significant threat to privacy. If everyone is applauding the removal of the celebrity nude pictures, then we must consider that having something akin to the RTBF is a good thing as well. Imagine a leak of private pictures that does not involve a celebrity, so there is no rush from to remove the pictures; the affected party contacts intermediaries, and they shrug. I propose that the RTBF is precisely the type of legal action that victims of such attacks should have. I know that it is impossible to remove the content altogether, but at least removing links from search engines will give some respite to the victims.

Just to clarify, I am not calling for the enactment of the global right to be forgotten, I am just asking those who advocate the removal of celebrity pictures from the Internet to look at the CJEU decision again as a possible solution for future cases.

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