Go Europe: The Right to Be Forgotten Is Exactly What the Internet Needs

Eric Posner weighs in.
May 14 2014 4:37 PM

We All Have the Right to Be Forgotten

Europe is ahead of the United States in repairing the damage to privacy the Internet—and especially Google—has wrought.

Erase your online past.
Once information is online, it can be forever instantly accessible through search engines.

Photo illustration by Juliana Jiménez Jaramillo. Photo by Kacper Pempel/Reuters.

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.

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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.

The advent of the Internet, however, has changed everything. Once information is online, it can be forever instantly accessible through search engines. No need to dig through archives or court records for the record of Costeja’s debt—it was at your fingertips if you searched his name, whether or not you even wanted to know. A quarter-century ago, there would have been little chance that Costeja would still have to explain himself to an employer or landlord or client or prospective date. The newspaper story would still exist on microfilm somewhere, but practically speaking, it would be gone.

The problem of old embarrassments or troubles living forever online is one that American law does not yet address. And it’s a problem that is actually worse for people who are not public figures—the people who are supposed to receive greater privacy protections from the law. If you’re a movie star, or even a blogger, Google will turn up dozens of new links when someone searches your name, and the old, embarrassing ones will quickly be buried. But if you’re just a regular person, a news story is likely to continue to surface at the top of your Google results. Searchers may find additional information about you on Facebook and other social media, some of which may end up on the open Web.

So we have to warn our children not to post anything about themselves online that might cause an employer to raise an eyebrow decades hence. But this is an impossible standard. Our children can’t stop their friends (or enemies) from posting drunken photos or a heedless rant, barnacles that will cling to them for years.

You can beg people to take down offending images and text. If you really work at it and spend money on a lawyer, you might be able to get a court order. But all of the effort will be wasted if the telltale content has already been copied and pasted elsewhere and then swept into Google’s servers. That’s why the European court’s focus on search results is key—the problem isn’t the continuing online existence of the information you want to hide. It’s how easy it is to find.

It’s hard to imagine a “right to be forgotten” in the United States. The First Amendment will protect Google, or any other company, that resurfaces or publishes information that’s already public. This is especially true of official records, like a property auction, but also applies to pretty much anything that has not been found by a court to be defamatory. By contrast, the right to be forgotten allows courts to balance the public’s interest in knowing this information against the ordinary person’s right to be left alone.

Critics of the European right to be forgotten need to explain why they disagree with the balance between free expression and privacy that the law reached until the digital era—when the barrier of the physical search almost always provided adequate protection for privacy. Shouldn’t new laws and rulings, like the one this week, give people back the privacy that technology has taken away? 

One response is that we are better off with an unfettered Web because now we can learn people’s entire history before lending money to them, hiring them, renting apartments to them, or dating them. Our loss in privacy is offset by our gain from the loss of privacy of others. But U.S. law should do more to protect our privacy than it does right now. That means the type of balancing endorsed by the European Court of Justice. Privacy allows us to experiment, make mistakes, and start afresh if we mess up. It allows us to reinvent ourselves, or at least maintains the valuable illusion that reinvention is possible. It is this potential for rehabilitation, for second chances, that is under assault from Google. By selling ads against it, Google makes money on private information about you and me. Shouldn’t the company pay the modest cost of ensuring that long-ago embarrassing information, of little meaning to others, doesn’t turn up at the top of a search?

In the old days, Europeans who wanted to forget their pasts would come to America for a fresh start. Today, one would head in the opposite direction.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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