By Paul Rosenzweig, The George Washington University Law School
The European model has a different way of protecting European privacy: the right to be forgotten. It allows people who feel their privacy has been infringed upon to request and require that even truthful information about them be deleted or obscured. For many years, this concept was discussed and argued about on the other side of the Atlantic.
The Right to Be Forgotten
The right to be forgotten didn’t really come to prominence until May 2014 when the European Court of Justice—Europe’s highest judicial body, akin in some ways to the US Supreme Court—considered a case brought by a Spanish man named Mario Costeja González.
Back in 1998, Mr. Costeja González had his foreclosed home sold at auction. He later paid that debt, but the fact that he’d been a debtor was recorded for posterity in a digitized 1998 article in the La Vanguardia newspaper. Mr. Costeja Gonzalez originally complained to the local Spanish Data Protection Agency, asking for the article to be removed from the Web. But the agency rejected his complaint on the grounds that the newspaper article was lawful and accurate.
The authority did, however, accept a complaint against Google and asked the US company to remove links to the article from the search results that were derived for Mr. Costeja González’s name, even though Google wasn’t the author of the article. The argument was that the search engine was at fault because it made the article visible to a large audience.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Warning at the Bottom of Google’s European Pages
Rather than just delete links to the offending article, Google sued the data authority in Spanish Court, and that national court, in turn, referred some of the questions before it to the European Court of Justice. The European Court of Justice ruled that search engines are responsible for the content they point to. And, thus, Google was required to comply with EU data privacy laws.
And that, in turn, means that individuals can ask Internet search sites to remove links to Web pages that contain inadequate, irrelevant, or no longer relevant information in the results page for searches of their names. Since that ruling, Google has had requests to remove more than 300,000 links and has removed 40% of those requested. And that number grows every day.
And so, we have the warning at the bottom of the Google page. That’s Google’s way of letting you know that the subject of your search might have asked for his or her name to have been removed from an old link.
Right to Be Forgotten and Its Oddities
First, let’s accept at face value that this is a direction to delete truthful information. In the United States, there would be a strong preference for allowing the publication of accurate information.
That understanding is reflected in American law. Consider, for example, the case of Sidis v. F-R Publishing Corp. William James Sidis was a child prodigy with extraordinary math skills. As he grew up, he faded into happy obscurity, an anonymity that was torn away when The New Yorker magazine wrote an article about him.
Sidis sued, and he lost. Essentially, the court said that for someone who was once a subject of public interest, however modest, there was no right to control the dissemination of truthful facts about him. The court thought that there was a social value in facts about a public person being known and that you couldn’t just opt out of celebrity status.
Europe is different, however. There, William James Sidis might easily have sought to have what he saw as irrelevant information delinked from the search engines.
Learn more about constitutional law in America.
Obscuring the Right to Be Forgotten
So, why Google? In other words, why is it that Google has to edit the search results, but that the newspaper it is sourcing doesn’t have to change its digitized records? In fact, the European Court of Justice explicitly said that it couldn’t make the newspaper edit its records. So this isn’t about wiping out the truth, really; it’s just about making it harder to find.
Also, who judges? Who gets to say what is and is not relevant? Today, the answer is that Google does and the other search engines like Bing and Yahoo. They take in the requests and process them based on their own assessment of relevance and importance. And that’s pretty strange, too.
Learn more about the difference in legal state of data collection between Europe and America.
Can the Right to Be Forgotten Applied Globally?
So, finally, is this right global? You can find the same data that is missing in Europe on an American website. There’s even a website called Hidden from Google, where you can find the missing data. European policymakers don’t like this. They can’t do much about Hidden from Google, but they do say that Google and other search engines are required to remove links from all results pages in all countries regardless of where the search takes place.
That’s pretty hard to accept. It means that Europeans would decide what information citizens of every other nation can access. Google has so far refused to comply with these demands, but only time will tell whether it can continue to resist.
Common Questions about Europe’s Right to Be Forgotten
In 1998, Costeja González’s house was sold at auction. He was later able to pay off his debt, but his name was recorded as a debtor in a digital article. He asked the court to order the removal of the links, hence, giving birth to the right to be forgotten.
No, although people in Europe can have links in Google removed, they can’t delete the information in newspapers, even if it is old. Therefore, the idea of the right to be forgotten isn’t to delete information completely but to make it difficult to find.
The idea of the right to be forgotten is applicable to links in search engines such as Google, Bing, Yahoo, etc. People in Europe can ask to remove links about themselves.
