Will Europe Censor This Article?

The troubling implications of the EU's new "right to be forgotten."
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It's not every day that a court makes a ruling that could change the Internet as we know it. In a decision issued Tuesday, the European Court of Justice (ECJ)—whose jurisdiction covers all 28 European Union member states and some 500 million people—did just that when it ruled that a handful of search results on Google violated a Spanish man's fundamental right to privacy.

The court's decision comes by appeal of Mario Costeja González, a Spanish man who sought to remove evidence of his home's repossession and auction from the Internet. González argued that the 1998 auction notice in the Spanish newspaper La Vanguardia should no longer be linked to his name in Internet searches. Relying upon the EU's data-protection directive—a regulation governing personal data privacy—and the EU's Charter of Fundamental Rights, the judges ruled that González's privacy rights override "not only the economic interest" of Google as a search engine, "but also the interest of the general public in having access to that information upon a search relating to [González’s] name." As a result, they ordered the links stricken from Google's search results.

"As far as I know, this is unprecedented," Jimmy Wales, a founder of Wikipedia who has campaigned against Internet censorship, told me. "It is certainly shocking to have come from the EU rather than from an authoritarian state."

The ECJ ruling didn't order the newspaper itself, La Vanguardia, to remove its original article, as González had also requested. Instead, the court simply ordered Google to remove all links to the auction notice from its search engine. Ironically, the ECJ's ruling explicitly mentions González's auction notice and financial trouble. Will the court order that its own decision be made unsearchable online?

The court recognized what some European legislators call "the right to be forgotten"—the idea of giving ordinary citizens more control over their personal data, including its deletion. Its ruling sets a precedent for both national courts and the ECJ itself in future cases. "If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system," stated Viviane Reding, the European Commissioner for Justice, when describing the proposed right in 2012. A European Commission memo noted that the right "is about empowering individuals, not about erasing past events or restricting freedom of the press."

Legally obscuring a person's past isn't an entirely new concept. "In Europe, the intellectual roots of the right to be forgotten can be found in French law," wrote law professor Jeffrey Rosen in a Stanford Law Review article on the subject, "which recognizes le droit à l’oubli—or the 'right of oblivion'—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration."

Similar protections exist to a degree in the United States for minors: Many news outlets don't publish their names, for example, and courts can expunge their criminal records when they reach adulthood to prevent lifetime stigmatization. But the First Amendment would make a "right to be forgotten" virtually impossible to create or enforce in the American legal system. The U.S. Supreme Court already ruled in 1989 that penalizing a newspaper for publishing truthful, lawfully obtained information from the public record was unconstitutional, for instance. 

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Matt Ford is an associate editor at The Atlantic, where he oversees the National Channel and works on social media.

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