Europe’s ‘Right to Be Forgotten’ Ruling Is Unforgettably ConfusingBy
Sometimes a murky court ruling becomes clearer with the passage of time. But the more people think about the European Court of Justice’s “right to be forgotten” ruling against Google on May 12, the more confused they get.
Europe’s high court ruled that the operator of a search engine is obliged upon request to remove links from a person’s name to third-party information if that information is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue.” (Here’s a link to the opinion in all its glory. And here’s a slightly more understandable press release.)
Bloomberg News reporter Aoife White quoted James Waterworth, the head of the Brussels office of the Computer & Communications Industry Association: Granting citizens a so-called right to be forgotten could “open the floodgates for tens of thousands of requests to have legal, publicly available information about Europeans taken out of a search index or links removed from websites.”
In Europe, coverage of the ruling has ranged from mostly respectful to supportive. Charles Arthur writes in the Guardian: “If you think the judges have taken leave of their senses, or that this means Google is going to wipe its index, don’t panic. Neither is the case.”
Americans have had a harder time getting their minds around it. Jimmy Wales, the founder of Wikipedia, rhetorically asked Matt Ford of the Atlantic, “Is Google required to start censoring large swaths of the Web? Are they required to build a complex censorship engine to block true information that a court has ruled must not be linked to? It’s crazy.”
Set aside the high-minded discussions about whether the right to privacy should trump the right to know, or vice versa. The real problem with the decision is that it seems entirely unworkable. Try answering these three questions:
1. How will Google and other search engines determine what’s “relevant”? Someone applying for a job might feel that a link to a past nightclub altercation isn’t relevant and should be deleted. The prospective employer might feel it’s very relevant (especially if the employer is another nightclub). In Germany, a former SS commando named Henrich Boere who was a Nazi hit man during World War II tried to invoke the right to be forgotten in bringing charges against reporters who secretly videotaped his confession. A judge acquitted the reporters. But the question remains: Whose standard of relevancy applies?
2. What does it mean for personal information to be “inadequate”? If a news story mentions a drunk-driving arrest but fails to note that the driver was Phi Beta Kappa, is that inadequate? No single link can be expected to portray a person in all of his or her complexity. If that’s what adequacy means, it’s an impossibly high standard that could lead to wholesale destruction of the system of links that make up the Internet. The decision “allows individuals to complain to search engines about information they do not like with no legal oversight,” Index on Censorship, an advocacy group, said in a statement. “This is akin to marching into a library and forcing it to pulp books.”
3. If passage of time is important, as indicated by the “no longer relevant” standard, then how much time must pass? Is it two months for a mildly embarrassing gaffe at a holiday party but five years for a bankruptcy filing? Statutes of limitations have grown out of common law, developing over centuries in tandem with changing societal norms. The European Court of Justice is essentially ordering Google and others to create a parallel statute of limitations for Internet links with no history or principles to go by.
Add to this the problem that if Europeans who complain don’t like the decision of the search engine, they can appeal to their national regulators. So a policy that Google works out for France might not work in Slovenia or Portugal. As you can see, there are no good answers here, just a giant ball of legal yarn that soon will be hopelessly tangled by lawyers. What a mess.