Like a maddening multilingual elephant, the Internet doesn’t forget. Youthful political musings are recorded for posterity along with love-sick Facebook posts, mortifying photos, college-police blotters and announcements of ill-fated weddings. That’s inspired the formulation of a new fundamental right, one no Enlightenment philosopher ever dreamed of: A right to be forgotten. The European Union’s top court became the first legal body to make it more than an interesting idea: In May, it ruled that search-engine companies like Google must remove links to posts about citizens of the European Union who request it if they are “inadequate, irrelevant or no longer relevant” — even ones that are lawful and true and still on the Web if you know where to look. Failure to comply could result in fines. Tens of thousands of requests flooded in and unintended consequences are piling up.
In the EU, Googling for most names now yields this notice: “Some results may have been removed under data protection law in Europe.” By mid-July, more than 70,000 removal requests covering 250,000 Web pages had surged in to Google alone. They included ones from a doctor who received negative reviews, a man convicted of possessing images of child abuse and a former politician seeking re-election. The court said search companies (the ruling applies only to them) should find a “fair balance” between privacy rights and the public interest, but offered little guidance for doing so. Exactly how Google, Bing, Yahoo and other search engines determine which requests to honor, and how websites might appeal their decisions, isn’t clear. Several British newspapers have had links to articles redacted from search results then later reinstated. Robert Peston of the BBC lamented that his writing had been cast “into oblivion” after links to a blog post he’d written about Stanley O’Neal, the former head of Merrill Lynch, disappeared. Peston assumed O’Neal had complained; it was actually someone who had left a comment on the post. Early tallies suggested that criminals made up a fairly high percentage of those interested in being forgotten.
The idea that there’s a right to be forgotten has roots in a French concept called the “right of oblivion,” the notion that past indiscretions and transgressions shouldn’t haunt one forever. In recent years, academics like Viktor Mayer-Schonberger, a professor at Oxford University, have tried to apply the concept to the reality that information once buried in stacks of paper had become instantly available everywhere. European legal systems tend to give privacy more weight than the American one in balancing personal protections against free expression; in its decision, the EU Court of Justice found that the right to be forgotten had a legal basis in a 1995 European Parliament directive that offers protections for personal data. The court ruled in favor of a Spaniard who had objected to search results that prominently displayed legal notices referring to his old debts. The ruling held that search engines qualify as data “controllers,” roughly akin to credit-rating companies, and thus must honor requests from the public to remove objectionable links about them (with a few exceptions, such as for public figures). The Parliament now wants to make the right an explicit law, and some companies have found a promising business opportunity.
Privacy activists say the decision could offer relief from vindictive online behavior, as well as a fresh start for people who want to forget past mistakes. Europe’s justice commissioner argues that removing the links isn’t an unreasonable burden on search companies. Google detractors say the company has been profiting from the misery of others by selling advertising adjacent to its results. Free speech advocates say Google is now abetting censorship, abridging press freedom and revising history. Some also say the court made an unreasonable imposition on a private (and non-EU) company and paved the way for some heavy logical quandaries. Google the people who post information should be the ones to deal with privacy concerns; it hates the court’s ruling. Mayer-Schonberger thinks it doesn’t go far enough. An EU agency found that enforcing it would be “generally impossible.” And who, after all, will pay for the whole thing?
The Reference Shelf
- Bloomberg View wished the EU well in an experiment it deemed unwise.
- A Stanford Law Review article predicted it would end badly.
- The EU Agency for Network and Information Security questioned the ruling’s technical feasibility.
- The European Commission has a handy legal fact sheet.
- Are you an EU citizen? Get yourself forgotten!