Let’s keep remembering the ‘Right to Be Forgotten’
Being a large corporation that operates in Europe necessarily means you’re going to be subject to EU regulation. But Google’s understandable efforts to come to terms with regulators in the EU necessarily means the company will make more judgments that affect freedom of expression and freedom of inquiry – two rights that are, in theory, considered “fundamental” in the European Union more or less the same way they are here.
If you grew up as an American, you’re maybe used to hearing freedom of speech, and even freedom of inquiry, talked about in terms of the First Amendment (in U.S. constitutional law, the second right is often seen as implicit in the first). If you tried to memorize the First Amendment, you’d find it pretty easy to do so—it’s only 45 words long.
But Europe has long taken a more nuanced view in many of its human-rights documents. For example, Article 10 of the European Convention on Human Rights does make it clear that it aims to protect both “freedom of expression” and the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
That sounds really good for Google, whose search functions were built on receiving and imparting information and ideas. But in Europe, as in many places elsewhere in the world, it’s a bit more complicated than that. The rest of Section 1 and all of the rest of Article 10 details limitations on your rights to expression and to information. And those rights are very broad. As the second section puts it:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
That in itself is more than 45 words. Other European sources of law have extended these limitations even further, and that’s how we just recently got the “Right to Be Forgotten.” In a 2014 case, the European Court of Justice found that a Spanish citizen — a lawyer who was trying to suppress Google’s links to a newspaper announcement of the forced sale of his home to pay social-security debts — had the right to compel Google to remove the links (see more here).
Google complied at first by removing Mario Costeja González’s name from its EU-facing search-engine products (this is sometimes called “delisting” or even “erasure”). Neither Costeja nor the privacy-advocacy community was satisfied with this response, and regulators have pushed for Google to delist Costeja from its search engines sites, including Google.com.
Which leads to today’s blog-post announcement by Google that the company will extend its delisting to all complaining persons whose requests meet the European Court of Justice’s stated criteria:
Starting next week, in addition to our existing practice, we will also use geolocation signals (like IP addresses) to restrict access to the delisted URL on all Google Search domains, including google.com, when accessed from the country of the person requesting the removal. We’ll apply the change retrospectively, to all delistings that we have already done under the European Court ruling.
Some privacy advocates will be cheered by this. For others, including me, Google’s efforts to respond to the court decision, while understandable, raise two important public-policy questions.
First, and most obviously, there’s a jurisdictional problem here. Why should search-engine results in other parts of the world (say, Canada or Japan) be “erased” by one plaintiff whose complaint is not that the Google results are inaccurate, but instead are merely “inadequate, irrelevant or excessive” under the laws of another country elsewhere in the world?
More importantly, why should freedom of inquiry for everyone around the world who uses search engines be shaped primarily by one company’s response to one court’s creation and interpretation of the Right to Be Forgotten? If, as we think, the EU is right to guarantee the right to seek and to impart information in the digital age, shouldn’t there be a larger public-policy dialogue about what the limitations on that fundamental right should be?
As for me, I’d prefer we decide the larger questions of what information we can seek and impart decided in as public and democratic a forum as possible. Google’s response as a company to regulators’ demands in Europe, while defensible, should be understood as a new phase in the debate over freedom of inquiry around the world, not as that debate’s conclusion.