Dangerous Ruling: EU Says Google Must Help People Disappear Stuff They Don't Like From The Internet
from the right to be forgotten dept
For years now we’ve explained why Europe’s concept of a “right to be forgotten” is a terrible, dangerous and impossible idea. The basic idea is that if you were involved in something that you’re not happy about later, you can demand that the incident be stricken from the record… everywhere. It’s a clear attack on free speech — allowing people to censor others from saying truthful and accurate things about someone.
However, Europe continued to push forward with it, even after a report noted that such a rule was technically impossible. Of course, once it was put into an EU directive, someone sued Google, in an effort to have an embarrassing moment from their past deleted. Mario Costeja Gonzalez sued Google, claiming that a search on his name turned up information on him being forced to sell some land in the 90s to cover some debts, and that since the matter was settled, he wanted it deleted.
We were encouraged, last summer, to see EU Court of Justice Advocate General Niilo Jaaskinen tell the court that there is no such right under the European data and privacy directive, and that Google shouldn’t be responsible for what it finds. Quite frequently, the EU Court of Justice listens to its Advocate General. Today, however, it chose not to, and issued an all around horrible ruling, in which it claims that Google is in fact responsible for making stuff disappear from the internet, even if that information is accurate. From the ruling:
Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.
Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.
Got that? Not only must search engines take down any links to such information posted by third parties, the interest of the person who is embarrassed by past actions has his or her rights override the “interest of the general public” in having access to that information.
While some European officials, such as Viviane Reding, claim this is a “victory for the protection of personal data of Europeans”, that’s not true. This is nothing more than a censorship law which will be wildly abused. As The Guardian’s James Ball explains, this creates an impossible quagmire for basically any internet company:
This creates a real quagmire for any company offering up information online: after how long does a bankruptcy ruling become something that should be private? Is that different if the subject is a celebrity or a politician? What if they offered the information voluntarily (or sold their story) in the first place? How about drug use, or prostitution, or murder? What if a person stands for public office a few years after having their search records scrubbed?
If nothing else, deciding such issues on a case-by-case basis will require huge teams of compliance staff in every tech company (and probably most media companies), and will tie up courts on the limits of each provision for years to come.
He further notes how this ruling will have dreadful consequences for both free speech and the tech industry in Europe.
The result is either an eerie parallel with China’s domestic censorship of search results, or a huge incentive for tech investment to get the hell out of Europe. Neither, presumably, is a remotely desirable result.
Either way, while we respect the Europeans’ interest in protecting privacy, there are ways to protect privacy that do not come with a full out attack on free speech. You don’t protect privacy by creating a broad censorship rule, but that’s what the EU has done today.