An Online Right To Be Forgotten?

Victoria Turk outlines the ruling handed down by the EU Court of Justice yesterday, requiring Google to comply with a request to remove personal information from its search data:

The case in question was referred to the European Union Court of Justice after being upheld by one of Spain’s top courts: In 2010, Spanish national Mario Costeja González brought a complaint against Google regarding the information that appeared when people searched for his name. Specifically, googlers would be referred to pages from local newspaper La Vanguardia from 1998, which revealed that González had had his home repossessed. The Spanish data protection agency AEPD ruled that Google had to remove those results as they were no longer relevant. Unsurprisingly, Google refused and a legal tussle ensued—but the decision has been upheld.

Henry Farrell emphasizes that the ruling “doesn’t assert a right to be forgotten as such”:

Its most important consequences are buried in the legal technicalities. First, it holds that Google (and, presumably, other search engines) are “data controllers” engaged in data processing each time they serve up a search result. Translated from legalese, this means that Google’s search engine results are fully subject to European data privacy law, which has many requirements beyond this new ‘right to be forgotten.’

This is new – and important.

Google and Microsoft’s European lawyers are facing into a series of very long nights as they figure out the implications of this ruling for their search business. Furthermore, the court ruled that because Google has an advertising subsidiary in Spain, it is subject to the control of Spanish data protection officials who want to protect the interests of Spanish citizens. This ruling immediately makes it more difficult for Google (and other web giants) to take advantage of regulatory differences in the European Union.

Yglesias adds:

Another, equally important aspect, as noted by European Union Justice Commissioner Viviane Reding, is the ECJ’s assertion that European law applies to services offered by US-based companies operating off US-based servers. In her words “companies can no longer hide behind their servers being based in California or anywhere else in the world.” From a multinational technology company’s viewpoint, this means that no longer can a single service be offered globally since it will be subjected to a fragmented regulatory landscape.

Andrew Orlowski yawns at the news:

You won’t be able to “censor Google” just because you don’t like something. Nor will asking Google get something deleted. There’s no new “right to be forgotten”. There’s nothing new today that need worry publishers and journalists – Lord Leveson’s Whingers’ Charter has far more of a chilling effect on news operations, especially smaller ones. And Google can say no to complaints. The courts ultimately decide whether a complaint has merits or not. In short, power hasn’t shifted dramatically one way or another. It hasn’t really shifted at all. All the ruling did was make Google subject to European laws.

Keating expects the decision to have unintended consequences:

I sympathize with people in cases like this and I completely understand that in EU countries, many of which have fairly recent experience of life under authoritarian governments, the right to privacy is interpreted more broadly. But while this case has pitted European privacy advocates, fired up in the wake of Edward Snowden’s revelations about the NSA, against Internet behemoths like Google, I suspect that the ironic result of the decision will be to empower governments and corporations at the expense of individual users.

The Bloomberg editors disagree with the court:

There’s no shortage of legitimate worries about this approach. It threatens free speech. Airbrushing history, even with the best of intentions, is almost always a very bad idea. It will place an arbitrary and costly imposition on search-engine companies. And such a sweeping new right is sure to have unintended consequences — for starters, by potentially depriving the public of useful information.

Moreover, the administrative complexities — where exactly does the ruling apply? To whom? How will disputes be arbitrated? — are deeply confounding. The costs to companies and governments of making such a policy work are incalculable. The consequences of censoring search results could quickly become perverse. And so on.

Matt Ford asks if the court’s decision will also require Google to scrub coverage of the case:

Ultimately, the ECJ’s ruling also demonstrates the quixotic nature of Internet censorship. González filed his lawsuit so people wouldn’t know that his home had been repossessed and put up for auction in 1998 because of his mounting social-security debts. Now, thanks to the court’s ruling, that information will be published in newspapers and on websites around the world—including this one. Will this article soon be unsearchable in Europe, too?

Another potential problem with the legal precedent is abuse. “[Hypothetically], I can demand takedown and the burden, once again, is on the third party to prove that it falls within the exception for journalistic, artistic, or literary exception,” [law professor Jeffrey] Rosen warned in 2012, when EU commissioners proposed the right to be forgotten. “This could transform Google, for example, into a censor-in-chief for the European Union, rather than a neutral platform.” Failure to comply with the restrictions could result in heavy fines, he explained, while compliance would mean “a far less open Internet.”

And Victor Luckerson explains why such a decision would never fly in the US:

First, Europe’s new ruling is difficult to reconcile with the First Amendment, which grants citizens the right to free speech. A U.S. law that compelled a company like Google to limit the type of content it shows in search results likely wouldn’t pass muster in American courts, experts say, because it could be construed as a form of censorship. “The First Amendment really does prevent this kind of widespread unpublishing of data,” says Danny O’Brien, international director at the Electronic Frontier Foundation. “In the U.S., free speech sort of trumps privacy.”