Will Europe Censor This Article?
The troubling implications of the EU's new "right to be forgotten."
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.
Because La Vanguardia obtained the auction notice for González's house from local public records, the court's ruling would seem to contradict the purpose (and name) of public records. "I do not know of any similar case where on the one hand a government publishes information, and on the other hand punishes telling people where to read it," Wales noted.
Fundamental differences in legal philosophy also make it unlikely that the EU's new right will cross the Atlantic. One person's right to be forgotten logically imposes a responsibility to forget upon someone else. That concept of rights is alien to American law: With a single exception, the Constitution and its Bill of Rights bind the government, not the people. The Thirteenth Amendment uniquely restricts the American people themselves—and quite rightly so—by forbidding them from owning one another. By comparison, embarrassing Google search results don't exactly pose the same inherent threat to liberty and equality.
European countries are also more aggressive about privacy rights and Internet censorship in general than the United States is. "In France, we had a bizarre demand from a government agency to take down an entry about a 'secret' radio station," Wales said, "but they backed down when we pointed out that the article had a reference to a news report in which the boss of the station gave a tour to a reporter."
Wales also cited a case in 2009 where two convicted murderers in Germany unsuccessfully sued Wikipedia to remove their names from an article about their victim. "Europeans have a long tradition of declaring abstract privacy rights in theory that they fail to enforce in practice," Rosen noted in 2012. Today's ruling could change that dynamic.
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," 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."
"Suppose, as seems likely due to the noise in this case, the legal and truthful information that Google is supposed to suppress is repeated in major news sources, blogs, tweets," Wales suggested. "Is Google required to start censoring large swathes of the web? Are they required to build a complex censorship engine to block true information that a court has ruled must not be linked to? It's crazy."