The European “right to be forgotten” is the most important right you’ve never heard of. It’s not a right to be purged from the memory of people who know you, but rather to control how information about you appears online.
On Tuesday, the European Court of Justice explained what this means. The court held that Google violated a Spanish lawyer’s right to be forgotten by refusing to eliminate links to embarrassing articles about him in its search results. The outcome was decried by press freedom advocates everywhere. In fact, it’s perfectly sensible. And it shows that, contrary to stereotype, America is rigidly ideological about free speech, while Europe is pragmatic and flexible.
Back in 1998, the Spanish newspaper La Vanguardia published two notices about an auction of the property of a Spanish lawyer named Mario Costeja, held to pay off his debts. More than a decade later, anyone who Googled Costeja would see, in the search results, links to those notices on the newspaper’s website. Costeja asked the Spanish Data Protection Agency, which oversees the dissemination of personal data, to order La Vanguardia to take the notices down and to order Google to remove links to the pages from the search results for Costeja. The agency refused the first request because the newspaper had published the notices by court order. But it granted the second, telling Google to remove the links.
This is the ruling that Europe’s highest court, the European Court of Justice, approved this week.
Much of the case turns on technical issues, such as whether a search engine is a “processor” of personal data under the law (it is). The bottom line, however, is that Google must remove links to Web pages that contain personal information unless the public’s interest in access to the information in question outweighs the privacy interests of the person who is affected.
This balancing test is vague, but it is hugely more protective of privacy interests than American law, which nearly always prevents people from winning anything from search engines and publishers who have spread personal information about them far and wide. The European ruling likely gives more protection to people who are not public figures, like Costeja, and from the publicizing of events that are long past. The right to be forgotten does not set up Google as “censor-in-chief for the European Union,” as Jeffrey Rosen argued a few years ago. The political content of the information plays no role.
Nevertheless, the New York Times editorial board squawks that the ECJ’s ruling “could undermine press freedoms and freedom of speech.” Rosen argued that the right to be forgotten heralded the end of the “free and open” Internet. Well, it could if European courts go overboard. But the time to complain is when and if they actually do. In this case, the court struck the right balance. La Vanguardia initially served the public interest by publicizing the auction of Costeja’s property—sure, that’s a fact of some value—so the newspaper should not have to incur the cost of taking down the articles. And at this point, what really matters is what Google has to do, since few people will discover the old articles without the aid of a search engine. By prominently surfacing Costeja’s old debt woes, Google’s search results disclose embarrassing information without providing much continuing value to the public. A private individual’s failure to pay a debt more than a decade ago tells us little about his character today.
If that sounds entirely alien in the age of the Internet, our laws and traditions firmly embodied this idea until a generation or two ago, when modern technology undermined them. On paper, this is still the case. For example, a private individual can sue and win damages from a newspaper that publishes private information about him, like an adulterous affair. In many states, people can get their criminal records expunged—removed from the public record—if the crimes are minor. There are countless laws that protect privacy for medical records and for financial information, like past bankruptcies. All of these rules used to make it difficult for the press to get its hands on old, reputation-damaging information.
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