Like a diamond, the internet is forever. But should it be? As more of our lives move online, digital storage continues to expand exponentially, and search engines become ever-more adept at culling that information, some people are questioning whether internet users should have the right to be forgotten.

Last month, the European Union Court of Justice—the EU equivalent of the US Supreme Court—answered yes. The case involved a Spanish man who wanted Google to remove links to decade-old newspaper articles. The articles reported his house being repossessed and auctioned off, which he claimed were outdated, no longer relevant, and harming his personal and professional reputation. The court agreed.

The court held that a search engine is responsible for its processing of personal data from third party websites. An individual’s privacy rights, the court noted, “override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.”

Thus, individuals can now petition search engines to remove results that are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.” If the company denies a request, the party can then appeal to the courts.

Although a bold step towards protecting digital privacy rights, the court’s decision carries important limitations. First, the court did not create a right to have the offending information itself removed from the internet, only the link to it in search results. Second, the right only applies to EU citizens in the domains under the jurisdiction of the European Union Court of Justice. So, for example, even if an individual successfully petitions Google to remove search results, they would only be removed from searches within the EU; the results would still appear in a search for the individual from Russia or Brazil. Similarly, an American citizen could not petition to have results removed.

Indeed, it is unlikely that US courts will soon endorse a similarly broad “right to be forgotten.” The First Amendment affords far greater protection of speech in the US than comparable European laws. Plus the technology industry, which staunchly opposes the new ruling, is much more influential in the US than across the Atlantic.

Big tech companies, and other critics, fear the court’s ruling could open the floodgates to internet censorship and could result in crippling compliance costs. In the first two weeks after the decision, Google—which processes 90% of European searches—was slammed with more than 12,000 requests for removal. Critics also decry the disparate treatment of internet companies versus other publishers. The Computer & Communications Industry Association, a trade group representing tech titans like Google, Microsoft, and Yahoo, voiced this concern: “If someone is libeled or defamed, they currently have right to have information taken down. What the court is saying is there is one standard for newspapers and another for Internet companies that provide links to information – including, for example, the original newspaper article.”

That the new right can be used to remove links to truthful, accurate information is one of the ruling’s most striking departures from prior law. But search engines are already taking steps to preserve access to matters of public concern. Google’s “forget me” form, for example, suggests it will not remove results for “information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials.”

Michael Griffin

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