Source: Bob Mical

Do you have the right to be forgotten?

This is the question that was decided in a European court late last week in a case between a Spanish man and Google. The idea of the right to be forgotten is a tricky one that is likely to be debated worldwide for quite a while as technology makes information more available and more difficult to hide. The case at hand concerns a Spanish man named Mario Costeja Gonzalez, who was dismayed to find that a Google search of his name rendered news reports detailing his debt problems in 1998. He argued that, considering that these debts have long since been paid, Google should remove those search results as they gave him undue embarrassment.

Google should remove those search results as they gave him undue embarrassment.

This was too tricky of a case to be decided within Spain’s legal system, considering the international reach of Google, so it went to the European Court of Justice, a judicial body that decides legal matters pertaining to the entire European Union.

A court case upholds right to be forgotten, or does it create it?

Ultimately, the court ruled in favor of Gonzalez, requiring Google to remove the results, in spite of the fact that the reports were true and that they are still published on the public web. The court argued that the EU’s Data Protection Directive of 1995 applied in this case. That law builds upon the European Convention of Human Rights, which demands protection for a person’s “private and family, his home and his correspondence.” The Data Protection Directive primarily concerns the way any information that concerns an identifiable person is collected, stored, and disseminated.

The first legal hurdle was to determine whether Google qualifies as a personal data processor and the court says that, indeed, Google collects, organizes, stores, and discloses personal data – this means Google is subject to the rest of the law. Next, Google’s argument that they are not subject to EU law failed in this case. Google Spain, they argued, does not do the indexing of the personal information; Google, Inc. of the United States does that. The court says that as a subsidiary of Google, Inc., Google Spain is responsible for the way the actions of Google, Inc. affects European citizens.

it is neither an absolute nor a specific ruling.

With the technicalities taken care of, we are left with the real decision. While Mr. Gonzalez will indeed see the results removed and this is a landmark case, it is neither an absolute nor a specific ruling. Let’s translate a little bit. There are several key points to take away here:

  • A search engine’s commercial interest does not factor significantly into whether they should be forced to remove personal information from their search results.
  • Whether the original content, such as a newspaper article, will remain legally accessible does not affect the responsibility of the search engine to remove the results.
  • The right for a person to ask for removal of personal information must be balanced with the public interest in attaining that information. The person’s present fame or notoriety factors in here; the more well-known you are, the less compelling your case will be.
  • The data to be removed ought to be “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” In the Gonzalez case, he says that the data appearing about him was outdated, not accurate since he no longer owed money to someone, and made that event’s significance appear more definitive of his person than it truly was since it comprised the majority of the data about him on Google.

In the case a European feels they should have search results taken down, they are to approach the search engine first. If it cannot be resolved between the two, they are to take it to law enforcement for adjudication.

The right to be forgotten vs. freedom of speech – who should win?

In this case, Google is saying that their freedom of speech is at tension with this man’s right to be forgotten. The court agrees and says his right to be forgotten ought to take precedence. Why?

First of all, American and European culture and law differs on this issue. Freedom of speech in the United States is of the oldest and most sacred political rights and we interpret the freedom of speech to encompass a lot of activities, including something like the search results on Google. While there are limits on free speech, they are comparably little when compared to much of the rest of the world.

American and European culture and law differs on this issue.

By contrast, Europeans have a longer history of privileging personal privacy and right to construct one’s own reputation. Legal scholar Jeffrey Rosen of George Washington University explained to the Wall Street Journal, “the dignitary traditions in Europe are so strong that when people feel that their honor or dignity has been affronted, there’s a presumption of some kind of legal relief.” After all, as mentioned earlier, the right to privacy was enshrined in the European Convention on Human Rights. 

Not to overstate the differences, the court in this case never considered demanding a takedown from the newspaper that published articles about Mr. Gonzalez; they were legally published, they were true, and the freedom of the press trumped his right to protect his reputation in that instance.

The difference with Google is that, by indexing virtually every single thing on the Internet, the court argues that it collates information about people in a way that would not otherwise exist and thus exerts considerable sway over the way the public might perceive a person. If Google wants to organize the search results about somebody in an unflattering way, it is unlikely that most of the public will be able to discern Google’s role in doing so. Instead, it will simply appear that the unflattering version of the person is the “real” person.

For Americans, this tends to still seem to be within Google’s right to free speech. Google does not lie and does not claim to be perfectly objective in its search results. There is also a compelling argument to be made that search engines’ role on the Internet today is so prominent that removing a listing from a search engine effectively removes the site from public access.

Under European law and (often) cultural norms, the practice of indexing the web does not grant a search engine the right to distribute that information freely. Just as a health provider cannot indiscriminately share identifiable facts and figures about its patients, a search engine has to exercise discretion in the way it shares collected information about people. At least, that’s what the European Court of Justice’s ruling suggests.

Americans, on the other hand, have no formal expectation of privacy in this form, particularly as it concerns private entities. The Constitution, drafted not long after the United States’ separation from an intrusive government, is very much oriented towards defending citizens from the government rather than rights protection in general. While I am generalizing to some extent, Americans would probably agree that they could more easily mount a legal case for personal data removal from a government database than they could from Google.

Should free speech advocates be alarmed?

There are several things to consider in this case. First of all, for the American readers, this case is unlikely to change Google’s treatment of American citizens.

nobody is trying to censor journalists with any traction at this point.

Also, as I wrote previously, the newspaper involved in this case was not asked to remove the reports. Spain, who decided to refer the case to the EU’s courts, needed no help in deciding that the newspaper was fully within its rights in keeping the articles published. This is despite rather strong privacy laws in Spain. In other words, nobody is trying to censor journalists with any traction at this point using the “right to be forgotten” argument.

Likewise, in the EU’s second highest court, Mr. Gonzalez lost to Google just a year ago. The ruling in favor of Google concluded that “the internet search engine provider cannot in law or in fact fulfil [sic] the obligations of the controller provided in the Directive in relation to personal data on source web pages hosted on third party servers.” In other words, the data privacy laws that regulate the way hospitals or governmental entities handle private information should not apply to Google, says the lower court.

Further, it argues, it is not even feasible to ask Google to do this even if it were the right thing to do. While the recent court decision reverses the lower court’s, we are not yet witnessing a wave of change in favor of censoring search engine results. The vagueness of the pro-removal ruling also makes it difficult to know how enforcement will play out in practice. A proposed new EU data protection law has not yet passed after two years of deliberation, due in part to the burdens it places upon those like Google who collect data on the web.

The handling of private and personal information in the technological age requires careful inspection if we are to enjoy the liberties that we are accustomed to.

Nonetheless, people on both sides of this issue should be on alert. Chances are, most who advocate for free speech also advocate for personal privacy and vice versa. The handling of private and personal information in the technological age requires careful inspection if we are to enjoy the liberties that we are accustomed to.

Tough choices may have to be made in the near future and, perhaps luckily, this balancing act has no clear partisan split. We’ll have to work together on both sides of the aisle, and the ocean, to work it out.

Featured image by Bob Mical (Flickr)

Tags: Europe Google Law Politics Privacy Search Technology

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