Privacy

In the Name of Privacy, the E.U.'s Top Court Endorses Censorship of Embarrassing Online Facts

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Mike Licht

Yesterday the European Union's highest court ruled that a search engine can be legally required to censor results that violate "the right to privacy" of someone who complains about them, even if the results link to accurate information that was posted legally. The decision illustrates the threat to freedom of speech posed by an amorphous, free-floating right to privacy, unmoored from contracts, property rights, or constitutional restrictions on government action.

The case involves a Spanish lawyer, Mario Costeja González, who was irked that results from Google searches on his name included links to newspaper pages from 1998 that carried an announcement of a real estate auction aimed at paying off his debts. Since his financial problems had been resolved years before, Costeja González felt that making information about them available online was unfair and misleading. In 2010 he filed a complaint with the Spanish Data Protection Agency, asking that the newspaper, La Vanguardia, be required to remove the pages and that Google be required to stop listing them in search results. The agency rejected the complaint against La Vanguardia, concluding that publishing the auction announcement was legal. But it ordered Google to comply with Costeja González's request. Google appealed to Spain's National High Court, which sought guidance from the European Court of Justice.

In the ruling published yesterday, the European Court of Justice concludes that Google qualifies as a data processor under an E.U. directive aimed at "protecting the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data." Among other things, that directive calls upon E.U. states to adopt laws requiring that "personal data" be "processed fairly and lawfully," that they be "collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes," and that they be "kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed."

Applying those principles to Google, the court concludes that a search engine operator can "in certain circumstances" be forced to remove objectionable search results, even when, as in this case, the content was published legally and remains available. By compiling information that would otherwise be scattered across the Web, the court says, a search engine intrudes on privacy in a way that the individual references do not, and such intrusion "cannot be justified by merely the economic interest which the operator of such an engine has in that processing." That interest, the court says, is outweighed by "the right to be forgotten":

Even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.

The court concedes that "the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information." Therefore "a fair balance should be sought…between that interest and the data subject's fundamental rights." That balance may depend "on the nature of the information in question and its sensitivity for the data subject's private life and on the interest of the public in having that information."

In other words, data protection agencies and courts are to decide, on a case-by-case basis, whether Internet users will be able to learn things that people would rather keep hidden, based on a subjective judgment of how important and how embarrassing the facts are. What could possibly go wrong? New York Times technology writer David Streitfeld suggests a couple of troubling scenarios:

Should a businessman be able to expunge a link to his bankruptcy a decade ago? Could a would-be politician get a drunken-driving arrest removed by calling it a youthful folly?

That's just for starters. For any given political candidate, public official, job applicant, potential business partner, date, future son-in-law, or new neighbor, there will be many facts available online that are arguably relevant to important public or private interests—which means they are also arguably irrelevant. Then there is the question of whether the interest at stake, whether it's evaluating your congressman or avoiding yet another bad relationship, outweighs the interest of your research subject in concealing facts that reflect poorly on him. This is a legal morass that invites arbitrary line drawing.

In the United States, the "right to be forgotten" would be a non-starter, since our Constitution guarantees freedom of speech, a principle that is incompatible with government decrees to send inconvenient truths down the memory hole. Some might even call it a fundamental right.

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  1. The case involves a Spanish lawyer, Mario Costeja Gonz?lez, who was irked that results from Google searches on his name included

    Baaaaaaaaaaaaaaaaa

    1. Yeah, he does remind me of another lawyer deserving of dying in a fire, He Who Must Not Be Named But May Fuck Goats.

  2. Any time a European attorney with financial difficulties is searched, it should trigger an automatic reverse DDoS attack on every corner of the internet until the cyberstalker becomes frustrated or bored prying into his victim’s public information.

  3. He’s managed to Barbara Streisand this pretty well. Google search his name and you get three news articles about this case, the link #4 is the 1998 announcement he doesn’t want anyone to know about.

    1. homoerotica dot lavanguardia dot com? You’re not getting me to click on that link!

      1. Jesse is going to be disappointed when he clicks that.

    2. Nothing makes people forget about you like making yourself famous.

      Before, a handful of people knew about his financial troubles. Now, millions do, and as a bonus know what a whiny little bitch he is.

      1. ^^THIS^^

  4. The agency rejected the complaint against La Vanguardia, concluding that publishing the auction announcement was legal. But it ordered Google to comply with Costeja Gonz?lez’s request.

    Because La Vanguardia doesn’t have a big pile of money, and Google does.

    Plus, Google is American, so it allows the allegedly enlightened Europeans to get their acceptable bigotry on.

    (And is anybody else having posting problems?)

    1. (And is anybody else having posting problems?)

      Yes, it’s squirrel stew, tonight.

  5. You know what’s also embarrassing: the EU’s policy on cookies.

  6. The stupid and the irresponsible have taken control of the reins of government.

    1. Since 1780something in the US.

      I guess “forever”, globally…

  7. By compiling information that would otherwise be scattered across the Web, the court says, a search engine intrudes on privacy in a way that the individual references do not, and such intrusion “cannot be justified by merely the economic interest which the operator of such an engine has in that processing.”

    Seems like this reasoning could be applied to outlaw surveillance in public areas, as well, no?

    1. Seems like this reasoning could be applied to outlaw surveillance in public areas, as well, no?

      yes.

    2. “By compiling information that would otherwise be scattered across the Web, the court says, a search engine intrudes on privacy in a way that the individual references do not..”

      “Your crime is making things easy! This information should be hard to find, and not available to people who don’t want to spend a lot of time and money!”

  8. Ok, Google, here it is. Don’t be evil. Refuse.

  9. Ok, so how is the entire Western World not entering into the Social Structure of Legalism from the Qin Dynasty?

  10. First they came for the revenge porn. Then they came for the historically-accurate public notices. What next?

  11. I’m having some laughs reading the Ars Technica recap of the Mayor Ardis/twitter parody account disaster, which is just sad all around.

    http://www.arstechnica.com/tech-polic…..n-his-face

    But then I read the parody post by Popehat from Mayor Ardis and all is better.

    http://www.popehat.com/2014/04…..le-of-law/

    Public Official stupidity is infinite in the internet age, apparently.

  12. Who is going to send in the armies of censors to black out archived newspapers and microfiches of the truthful event from libraries?

  13. What weirds me out is the number of Europeans (and Americans) who think that this kind of law is perfectly normal, acceptable, and good, because “you own data about yourself”. I guess we have to chalk this up to “in practice, you have whatever rights and authorities your culture grants you”, but not one of them has been able to explain to me _why_ you own data about yourself, or what data exactly you own or don’t own.

    1. Uh, to be fair isn’t “ownership of metadata” basically the only argument against the constitutionality of the NSA programs.

      1. Not really. The phone companies have a right to maintain their documents in privacy absent a search warrant. The government has forced them to “voluntarily” hand over data about their customers that they have no interest in handing over.

        It would be one thing if the government went to the ISPs and phone companies and said “could you please allow us access to your network so we can collect this data. In that case we would all be looking for terms of service that protect our data. Then we would be able to take the phone company to court if they violated these terms.

        That actually has some relevance, as AT&T cooperated early on with the government and needed protection from congress after the fact. Something else that should probably not pass constitutional muster.

    2. They see it s an extension of self-ownership.

      Even I, although I don’t like this ruling, am glad to see this court base their decision on what they see as a fundamental individual right. It shows their heart is in the right place?that they’re amenable to rights-based reasoning and the sanctity of the individual. Then it’s just a matter of straightening out details.

  14. Question is, will Google pull a Wikipedia and go dark in Spain over this ruling, to wake up the somnambulent public to what their unelected officials are doing?

  15. Can I assume the google will also be required to pull the search results to the court opinion requiring it to pull search results? And if does, does the court opinion really exist?

  16. I am really surprised this has not garnered more of a reaction. This is just about as horrible a ruling as one might imagine. The idea that you can make it illegal to answer the question “hey, what do you know about Bob?” by pointing to a newspaper article about Bob is just plain stupid. Especially if you are going to avoid banning the newspaper article.

    Because they have ruled that the original content need not be removed, they have created a level of stupidity that cannot be overstated. They speak of the length of time that has passed for the “data processor” – but a web page has no length of time in relation to search engines in general. Ok, so you get Google to remove the result. Web crawlers are running continuously from various search providers. They revisit sites daily. This just kicks the can down the road. When did Google index the article? What about SearchNuevo? How about a search engine results aggregator?

    How about I start a company that provides web-crawler services (but does no processing of the data)? And John starts a company that indexes aggregated web-crawler results. And Diane starts a company that provides an interface to those results along with advertising (but does no processing). Good luck with that Gordian knot. Particularly when there are a dozen Johns in the middle doing the processing.

  17. What is it with Europeans and memory holes?

  18. Thank god I have the same name as a famous musician. Anything about me is buried under hundreds of thousands of pages about him!

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