Should We Have A “Right to Be Forgotten” in the Digital Age?

-- By ClaireM - 28 Oct 2014

The European Court of Justice (ECJ) ruled in May that all individuals within its jurisdiction have the right to prohibit Google from linking to information about them that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” Google has since received over 140,000 requests to take down more than 500,000 links—nearly half of which it has granted. Yahoo and Bing have also implemented the Court’s decision. The ECJ’s recognition of a “right to be forgotten” has generated much controversy, especially in the United States, where the competing right to freedom of expression trumps privacy, or at least weighs much more heavily in a balance of the two.

While the ECJ’s ruling does not compel newspapers or other sources to take down information from their websites, requiring search engines to remove links to legally published information is not unproblematic. There is no issue of libel or copyright infringement. Moreover, it is not personal information over which we can and should maintain control, such as our browsing history or social media profiles. There is certainly a risk that individuals could use the decision to hide or suppress information of public importance, which is why regulation of almost any kind of speech is generally frowned upon in the United States. An editor of the Techdirt blog, for example, wrote that “[t]he idea that public information that is widely disseminated already can magically be made private because someone thinks it’s embarrassing and that it’s no longer important is simply a ridiculous assertion in the first place.”

To dismiss the ruling as absurd or “ridiculous,” however, would be to ignore the real human suffering that accompanies the erosion of privacy in the digital age, where previously unimaginable quantities of personal information can be stored and searched. This particular case arose in 2010 when Mario Costeja González, a Spanish lawyer, filed a complaint against Google Spain and Google Inc., arguing that an auction notice of his repossessed home on Google’s search results infringed his privacy rights because the proceedings were fully resolved more than 16 years ago. Another common scenario involves individuals haunted by criminal records that show up in a Google search long after they have been expunged. When machines have made it easier to remember than to forget, it makes sense to recognize the human need, at least for private citizens, to grow and move beyond past incidents and mistakes.

Vice president designate for the digital single market at the European Commission has said: “The European Court of Justice did not say that everybody has the right to be forgotten. ‘Right to be forgotten’ has to stay as an exception.” As recognized by the ECJ, the right to be forgotten must be balanced against other fundamental rights, such as the freedom of expression and the media. Accordingly, a case-by-case assessment is needed to consider: (1) the type of information in question; (2) its sensitivity for the individual’s private life; and (3) the interest of the public in having access to that information. Whether the person requesting deletion is a public figure may therefore be relevant. While any standard for determining whether a link should be removed can be criticized, this alone should not prevent our recognizing such a right.

Many commentators have objected to the role that the ECJ’s decision has given to Google, which must now internally adjudicate individual claims. For example, one Huffington Post article’s title reads: “Google Gets a Philosopher to Decide Who Gets ‘Forgotten.’” Google and other search engines already have a system in place for copyright and trademark objections, however, so while one could argue that the ECJ’s decision has required more complicated case-specific decisions, it is not the case that Google only acts as a mere intermediary between reader and publisher. The results of a Google search often matter more than the actual creation or publication of information on any individual website because it is search engines that make the information accessible. Google therefore appropriately bears certain responsibilities as the de facto library of the modern information economy. Of course, in removing links search engines must take care to avoid the so-called “Streisand effect”: calling attention to the removed links (as Google does with copyright takedowns) would defeat the purpose of the ECJ’s ruling.

Many have also decried the beginning of end of the “global internet,” where decisions like the ECJ’s will prevent everyone from having access to the same information. In this case, the court held that even if the physical server of a company processing data is located outside Europe, EU rules apply to search engine operators if they have a branch or subsidiary in a member state that promotes the selling of advertising space offered by the search engine. But the decision begins to seem a bit silly when links that no longer appear on Google’s European pages will still be available in the United States and elsewhere. Some have therefore argued for extending the decision’s reach to force Google to take down the links in other parts of the world as well. Allowing courts and regulators in one country to dictate how websites work in other countries would create a massive jurisdictional mess, since it is inevitable that standards would vary widely among states.

While messy in its application, the ECJ’s recognition of a right to be forgotten is a legitimate response to the loss of privacy and obscurity in the digital age.

You haven't shown why the whole business is not absurd.

You say that results not obtainable in Europe will be visible in the US. You should have said that the results supposedly not obtainable in Europe will be obtainable everywhere in the world, including Europe, to anyone with a browsing proxy in the US, which is everybody in the world, including people in China using VPN-based proxies to browse over the Great Chinese Firewall. So the results not obtainable in Europe are obtainable everywhere. That's pretty absurd.

You say that the problem with making the absurd European rules global is that there would be "jurisdictional mess." No, the problem is that in the US such a rule is patently unconstitutional, because of the First Amendment, which means that having such a rule anywhere else in the world is absurd. See above.

The rule is also absurd unless public records are not going to be made public. Because the application of the "right to forget" to online public records is the right to vandalize the records. And is it not absurd to say that some Spaniard is harmed because the auction of his house 16 years ago is recorded? Of course it's recorded: it's a public record.

I do think this draft can be improved, but I don't think it can be improved without coming into contact with the actual criticisms of its position.