Today the European Commission released its official data protection rules, which will go into effect in all 27 countries of the European Union during 2014 pending European Parliament approval. Among the many new directives is an enshrined version of Europe's controversial "right to be forgotten." I first wrote about our transatlantic divide over privacy and the nature of this proposed right nearly a year ago, back when the European Union announced its intentions to "clarify" what the right meant. It seemed as if the EU was saying that any individual could ask Google to take down links to unflattering stories.
Surely all people suffer from some unknown horror
embarrassing them online, from an old photo or comment, up to
a Gawker post. The Internet owns
us. Our social networks, our blog comments, our quotes in newspapers,
ratings, Amazon reviews, e-mails, all our personal data, from our
our home state, the Internet knows. But should it always? Or do we
users bear an innate "a right to be forgotten" online? It's natural for
people to want to control their online reputations.
Unfortunately, the right to be
forgotten, in its initial conception, would have granted that power in
broadly dangerous ways. Now, the right to be forgotten is about to become
reality, but don't worry just yet. The right itself has evolved since its inception -- and in the best ways possible.
"Another important way to give people control over their data: the right to be forgotten," declared Viviane Reding, vice president of the European Commission and EU justice commissioner, at the Digital Life Design conference in Munich on Jan. 22. "I want to explicitly clarify that people shall have the right -- and not only the 'possibility' -- to withdraw their consent to the processing of the personal data they have given out themselves. The Internet has an almost unlimited search and memory capacity. So even tiny scraps of personal information can have a huge impact, even years after they were shared or made public. The right to be forgotten will build on already existing rules to better cope with privacy risks online."
Meaning what? European countries first began pushing for a "right to be forgotten" more than a year ago. The push quickly became dramatic, as when Google employees rushed to Madrid to fight a legal case that would have removed more than 90 Internet links, including some to newspapers, from search results due to the bad light they cast certain individuals in. These individuals wanted the links removed. So why shouldn't they have the right to erase them?
A year ago, the rhetoric surrounding Europe's proposed new right inspired fear -- and rightfully so. The right emanates from Europe's rights of personality, and scholars like Georgetown Law's Franz Werro traced the right to Article 8 of the European Convention on Human Rights, which enshrined the privacy concerns of personality as a counterbalancing force to the free expression principles that had developed across the ocean in America's First Amendment. Put simply, Europe had formally enshrined a right to privacy where the U.S. has struggled to do so. Werro considered how such privacy rights evolved in Switzerland and noted how Swiss TV once blocked the airing of a documentary about decades-old criminal cases because the government no longer deemed them part of the public domain. In a 2009 paper, Werro declared that hypothetically "in the context of a conflict between the right to be forgotten and the freedom of the press, the European Court will balance the competing interests and may well consider that in certain cases privacy rights trump the right to publish." Cue cries of censorship. In January of 2011, Google's Peter Barron warned of a "profound chilling effect" and a former colleague of mine, news editor Padraig Reidy of the British magazine Index on Censorship, offered the following brusque note in the Guardian: "It encroaches on privacy law, and has massive ramifications on freedom of expression ... It looks like a plan by people who don't know how the Internet works." Google has wisely attempted to avoid the role as a moral or editorial judge of the content it processes.