In Luxembourg, the Court of Justice of the European Union ruled on May 13 that individuals have the “right to be forgotten,” meaning they have the right to ask Google to remove information about them from its search index. In America, where the right to free speech trumps the right to privacy, commentators such as City University of New York journalism professor Jeff Jarvis see the ruling as “a blow against free speech.” But even free speech absolutists have good reason to side with the EU.
I used to work as an editor at Harper’s Magazine and was charged with putting its archives, dating to 1850, on the Web. After the digital archive went online in 2007 and the articles began to show up in Google search results, people started asking to remove items, some decades old. The petitioners were sometimes litigious, sometimes plaintive. One submitted a funny letter about sex to a contest years before, and the magazine published it. Now he was looking for a job, and the letter was the top search result for his name. He worried that a prospective employer wouldn’t get the joke.
The EU ruling addressed a similar situation. In 2010, Mario Costeja González of Spain sued Google and the Spanish daily newspaper La Vanguardia for displaying in the search results for his name “an announcement for a real estate auction organized following attachment proceedings for the recovery of social security debts owed by Mr. Costeja González,” according to a report released by the court. He wanted either Google or the paper to remove the record. He wanted to start over.
At Harper’s, we decided we had a professional and ethical requirement to preserve the historical record of the magazine online, no matter how inconvenient. Our policy was simply to block Google from indexing the article when asked—and it seemed to work. Years later, the Spanish court took a similar position, ruling that the local paper wasn’t obliged to remove González’s records from its archive. “The information in question,” it noted, “had been lawfully published.”
But there is no obligation for publishers, be they Harper’s or a newspaper in Spain, to maintain the same rigorous recordkeeping on Google’s index of the Web. In fact, the search giant makes it easy for publishers to obscure certain pages from its index, by using its webmaster tools or adding a line of code in a text file called “robots.txt.”
Google regularly removes illegal material, copyright violations, and the like from its index. There’s precedent for deletion of less sensitive material, too. In 2001, Google bought Deja News, inheriting a large archive of Usenet discussions created by thousands of people. Suddenly Google was both a publisher and an indexer. Usenet discussion groups were always public, but people saw them as fleeting. Now those conversations were permanent. After some outcry, Google allowed people to request that old posts be removed from its index—to exercise the right to be forgotten.
At Harper’s, we found that only a few requests came in per year, from normal people caught up in the sweep of a search engine, people who don’t fill out LinkedIn profiles or blog or tweet. These are the people who end up identified by Internet detritus such as court proceedings, old articles, and mug shots.
The tech industry is excited to talk about the next billion Internet users, but the Web wasn’t designed with them in mind. We have collectively ceded to Google the right to define our public personas, but it’s a consumer product, not a public trust. By granting the right to be forgotten to its citizens, the EU will allow them to shape their own personas. Why shouldn’t the U.S. follow that lead? It’ll be imperfect and annoying for Google. It’ll cost the company some time and money to evaluate claims. Google can afford it.