In Europe, a Right to Be Forgotten Trumps the Memory of the Internet

Why is it that two sprawling yet similar Western cultures -- those on both sides of the Atlantic -- respond so differently to Internet privacy?

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A quarter-century after coming to the United States, Franz Werro still thinks like a European. The 54-year-old Georgetown law professor, born and raised in Switzerland, is troubled when ads in French automatically pop up on his American laptop. The computer assumes that's what he wants. We live naked on the Internet, Werro knows, in a brave new world where our data lives forever. Google your name, and you'll stumble onto drunken photos from college, a misguided quote given to a reporter five years ago, court records, ancient 1 a.m. blog comments, that outdated Friendster profile ... the list goes on, a river of data creating a profile of who you are for anyone searching online: friend, merchant, or potential future employer. Werro's American students rarely mind.

But America is not Europe, and despite our no-secrets age of WikiLeaks, Europe wants to enshrine a special form of privacy into law. Individuals should, according to many in Europe, possess what they call a "right to be forgotten" on the Internet.

How do you create a space where we're free to analyze the data but not free to abuse the data? We've been asking the wrong questions.

How would this even be possible? This developing right, authorities in several European countries suggest, would allow an individual to control and sometimes eliminate his or her data trail and allow him or her to ask Google to remove select search results -- a newspaper article, say, which once painted him or her in a bad light. A look at recent news events guarantees that this right will only become more relevant in 2011.

On January 19, Google refused Spain's request that the ubiquitous, California-based search engine remove 90 links. Many of the links Spain wanted to remove included newspaper articles and information from public record, often painting the plaintiffs in a bad light. Google called Spain's request "disappointing" in its official statement and emphasized that as a search engine, it should not be responsible for curating Internet content. Removing links would be expensive, Google argued in court, and violate the "objectivity" of the Internet search. Last November, the European Union announced data protection goals for 2011, which include "clarifying the so-called 'right to be forgotten', i.e. the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes" (PDF). The EU explicitly said that users should have the right. It has already been heavily discussed and praised in countries such as France, whose President Sarkozy said last year: "Regulating the Internet to correct the excesses and abuses that come from the total absence of rules is a moral imperative!" France's leadership at the coming G8 summit also signifies more dialogue, as Sarkozy hopes to discuss the right on an international stage.

These European concerns rarely come up in the United States. People may worry about Facebook's privacy settings, but few would suggest an individual has a right to remove an offending Gawker post from Google's index. After all, who decides? A person might want an embarrassing photo removed from record, but what if the photo features not only that person but four others? The question of censorship is inevitable. The closest manifestation on this side of the Atlantic is likely a paper from the ACLU lobbying for a "right to delete" (PDF).

Why, then, have our two sprawling yet similar Western cultures responded so differently to Internet privacy?

In Europe, the idea that privacy should overrule free expression is nothing new. Professor Franz Werro keenly highlights the historical difference in a 2009 academic paper and points to a 1983 case in Switzerland. Swiss TV had planned to air a documentary about a criminal from the 1930s. Swiss law, however, forbade the airing of the program -- the European court "held that the documentary would unjustifiably violate plaintiff's privacy right to keep his feelings as a son from being trampled." Yale law professor James Whitman sees the differing concepts of privacy as a battle between liberty and dignity (here, the PDF of his 2004 journal article).

Transatlantic clashes over privacy in recent years have included the use of Google's Street View in Germany, Switzerland, the Czech Republic, and elsewhere. German criminals sued Wikipedia in 2009 to have their names scrubbed. A little less than a year ago, an Italian court successfully sued Google for allowing a user to post offensive video. The fact that many of the Internet companies such as Facebook and Google are located in the United States (where, as Werro says, there is "fetishization" of the constitutional First Amendment of free speech) creates deeper problems in the courtroom, as it did in Google's recent refusal in Madrid. American companies favor American law if possible, no matter what country they operate in. In Europe, the courts balance a right to a free press with rights of privacy, of personality, and of dignity, protected in Article 8 of the European Convention on Human Rights. In America, the implicit right to privacy always fell flat when running against the Supreme Court's fidelity to the First Amendment.

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John Hendel is a writer based in Washington, DC, and a former producer at The Atlantic.

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