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.