A man walks into a library. He asks to see the librarian. He tells the librarian there is a book on the shelves of the library that contains truthful, historical information about his past conduct, but he says he is a changed man now and the book is no longer relevant. He insists that any reference in the library’s card catalog and electronic indexing system associating him with the book be removed, or he will go to the authorities.
The librarian refuses, explaining that the library does not make judgments on people, but simply offers information to readers to direct them to materials from which they can make their own judgment in the so-called “marketplace of ideas.” The librarian goes on to explain that if the library had to respond to such requests, it would become a censorship body — essentially the arbiter of what information should remain accessible to the public. Moreover, if it had to respond to every such request, the burden would be enormous and there would be no easy way to determine whether a request was legitimate or not. The indexing system would become swiss cheese, with gaps and holes. And, most importantly, readers would be deprived of access to historical information that would allow them to reach their own conclusions about people and events.
The librarian gives this example: What if someone is running for office but wants to hide something from his unsavory past by blocking access to the easiest way for voters to uncover those facts? Voters would be denied relevant information, and democracy would be impaired.
The man is not convinced, and calls a government agent. The government agent threatens to fine or jail the librarian if he does not comply with the man’s request to remove the reference to the unflattering book in the library’s indexing system.
Is this a scenario out of George Orwell’s Nineteen Eighty-Four? No, this is the logical extension of a recent ruling from Europe’s highest court, which ordered Google to remove a link to truthful information about a person, because that person found the information unflattering and out of date. (The scale of online indexing would of course be dramatically more comprehensive than a library indexing system.)
The European Court of Justice ruled that Google has a legal obligation to remove, from a search result of an individual’s name, a link to a newspaper containing a truthful, factual account of the individual’s financial troubles years ago. The individual, a Spanish citizen, had requested that Google remove the newspaper link because the information it contained was “now entirely irrelevant.” This concept has been described as the “right to be forgotten.” While one may have sympathy for the Spanish man who claimed he had rehabilitated his credit and preferred that his previous setback be forgotten, the rule of law that the highest European Court has established could open the door to unintended consequences such as censorship and threats to freedom of expression.
The European Court relied on the fundamental rights to privacy and to the protection of personal data contained in the Charter of Fundamental Rights of the European Union, without so much as citing, much less analyzing, one of the other fundamental rights contained in the Charter, namely the right to free expression.
Moreover, the Court did not provide sufficient instruction on how the “right to be forgotten” should be applied. When do truthful facts become “outdated” such that they should be suppressed on the Internet? Do online actors other than search engines have a duty to “scrub” the Internet of unflattering yet truthful facts? The Court didn’t say. The European Court of Justice has mandated that the Googles of the world serve as judge and jury of what legal information is in the public interest, and what information needs to be suppressed because the facts are now dated and the subject is a private person. Under penalty of fines and possibly jail time, online companies may err on the side of deleting links to information, with free expression suffering in the process.
The European Court’s own Advocate General argued that a right to be forgotten “would entail sacrificing pivotal rights such as freedom of expression and information” and would suppress “legitimate and legal information that has entered the public sphere.” Further, the Advocate General argued, this would amount to “censuring” published content. In the First Amendment parlance of the U.S. Supreme Court, the European Court’s decision may amount to “burning the house to roast the pig.”
You might think this problem is limited to Europe, and that the search results in North America will remain unaffected by the Court’s ruling. But earlier European efforts to cleanse the Internet (in the context of hate speech) suggested that even materials on North American domains would be subject to European law.
As privacy advocates, we strongly support rights to protect an individual’s reputation and to guard against illegal and abusive behaviour. If you post something online about yourself, you should have the right to remove it or take it somewhere else. If someone else posts illegal defamatory content about you, as a general rule, you have a legal right to have it removed. But while personal control is essential to privacy, empowering individuals to demand the removal of links to unflattering, but accurate, information arguably goes far beyond protecting privacy. Other solutions should be explored to address the very real problem posed by the permanence of online data.
The recent extreme application of privacy rights in such a vague, shotgun manner threatens free expression on the Internet. We cannot allow the right to privacy to be converted into the right to censor.