Sep 062011
 September 6, 2011  Posted by  Non-U.S., Online, U.S.

Peter Fleischer writes:

I’d like to share some personal musings about an interesting series of court cases pending in Spain, pitting the “right to be forgotten” against the right to freedom of expression. The New York Times reported on this debate recently. In a nutshell, the cases ask the question whether people can demand that search engines delete content from their indexes, even if the content is true and the third-party site that published it clearly has the right to publish it (e.g., newspapers).


Many websites publish information about people, and sometimes this information can be hurtful to a person’s sense of privacy or reputation. For example, government websites or newspapers may publish information about criminal convictions or accusations of medical malpractice. People who feel that information about them was wrongly published by these web sites can always ask them to correct or delete it. But newspapers and government websites usually have published this information legally, or indeed may even be legally obligated to publish it, or may be exercizing their rights of freedom of expression. As search engine intermediaries, Google and other search engines play no role in what these web sites publish, or in deciding whether they should revise or remove content based on someone’s privacy claim against them.

That’s why I think it’s wrong that the Spanish Data Protection Authority has launched over a hundred different privacy suits against Google, demanding that Google delete web sites from its index, even though the original websites that published the information (including Spanish newspapers and Spanish official government journals) published that information legally and continue to offer it.

Read more on Peter Fleischer: Privacy…?.

I agree with Peter that the problem is not with Google or search engines. As he notes, an alternative approach of imposing restrictions on what sites can have indexed (e.g., by ordering them to exclude pages via robots.txt files) moves the conflict between privacy and freedom of expression to the publishers. On some level, that might be a much more satisfactory approach, but the very sites that post trash or gossip may be the same sites that refuse to exclude pages from indexing by arguing for freedom of expression. As an adherent to the adage, “Hard cases make bad law,” I fear that we will eventually wind up with conflicting court rulings or orders to publishers that may be consistent within one country (if even that), but inconsistent between countries. If privacy is really a human right, shouldn’t there be some consistency on this important issue internationally? If so, how can we reconcile the different philosophies and priorities?

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