Privacy Shouldn’t Trump Free Speech

Zach Graves Digital Director and Tech Policy Fellow, R Street Institute"
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In a decision surprising to many close observers, Europe’s highest court ruled last week that Google must establish a process to receive and vet requests to take down embarrassing search results that individuals believe violate their privacy rights. The ruling raises the threat that all search engines doing business in Europe may be forced to comply with individuals’ requests to remove links about them, even if those links are to factually accurate public information.

The high court’s ruling contradicts the recommendation of the EU’s advocate general. It also does a lot more than slightly impede the bottom line of the search giants. It muzzles the right to free expression in the name of protecting privacy, laying the foundation for a censored, fragmented and walled-off Internet.

The original case began with a lawyer named Mario Costeja González. In 1998, he found himself, and the foreclosure of his home, the subject of an article in La Vanguardia, a major print newspaper in Spain. Years later, an online version of the article was still appearing near the top of Google’s search results for his name. He decided to sue Google Spain and the newspaper, and the case made its way to Europe’s top court.

While the final decision did not require the newspaper to take down the offending article, it found that Google must take down links to the article, formalizing the idea that all Europeans have a “right to be forgotten.”

EU Commissioner for Justice Viviane Reding, a longtime champion of an expansive “right to be forgotten,” was quick to call the judgment “a clear victory for the protection of personal data of Europeans.” She continued, “data belongs to the individual, not to the company.”

But should people really own facts about themselves? Especially ones that are already public knowledge?

In the aftermath, Google already has received more than 1,000 requests from individuals seeking to edit their search results. These aren’t just lawyers embarrassed about going bankrupt. They include a plastic surgeon sued for malpractice, a disgraced politician seeking re-election, a doctor with negative online reviews and a convicted pedophile. Do they have the right to be forgotten, too?

Mike Masnick sums it up well at TechDirt, “[t]hose who keep cheering this ruling on as a victory for ‘privacy’ don’t seem to understand what privacy means. Public information about bad things you did is not private information.” But there are major currents in the European legal tradition that run counter to this idea. In French law, for example, there exists an earlier right to be forgotten — le droit à l’oubli — which gives a criminal the right to “object to the publication of the facts of his conviction and incarceration” after he has served out his sentence.

While there is theoretically an exception for public figures and politicians in the EU’s ruling, it’s hard not to see the the slippery slope of privacy trumping public interest. In France, a court recently ordered Google to censor links about former Formula One President Max Mosley’s infamous S&M sex party. The same logic could be applied to a political scandal, and there are clear incentives to push policy in that direction.

The full implications of a universal “right to be forgotten” remain unclear. It’s important to note that the EU’s ruling only covered information the court deemed “inadequate, irrelevant … or excessive in relation to the purposes for which they were processed,” and only after a decade had passed. Whether or not European authorities will also censor newer information, or information with a stronger public interest (such as political scandals and malpractice lawsuits), remains to be seen.

Still, the implications of this policy for the broader Internet are very disturbing. As a Wall Street Journal  editorial notes, if Google results are different in Spain, the United Kingdom and the United States, that creates a dangerous precedent for continued balkanization and fracturing of the web.

It also creates a chilling effect on journalists and news outlets, whose revenue model is dependent on traffic in large part coming from search engines. It also sets up incentives for news sites and search engines to avoid publishing certain types of information, and to err on the side of removing ambiguous cases when challenged in order to save the cost of disputing them.

It’s also ambiguous what kinds of entities could be affected by the ruling. Does it apply to searches on or about social media? How about the search bar on a news website (often powered by Google or Bing)? What about search engines for academic, news and legal research, like LexisNexis? With today’s multitude of blogs and news websites, making something unsearchable could be just as effective as deleting it.

An expansive version of the “right to be forgotten” would be a very bad thing for the Internet and for a free society. When censorship becomes institutionalized under the banner of protecting privacy, it undermines the democratic process, hinders public access to information and weakens the freedom of the press. If Europeans value a free and open Internet, they would be wise to abandon the idea. Though we can at least be glad it hasn’t taken hold in America.

Zach Graves is a policy fellow and digital director at the R Street Institute.