The European Court of Justice and the ‘Right to be Forgotten’

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual… the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.’

 

This sounds like it could have been written by Julian Assange – but it comes from an 1890 Harvard Law Review article by Louis Brandeis and Samuel D. Warren that made a compelling argument for an expanded right to privacy for American citizens. 120 years later, it evokes almost perfectly the challenges we now face in coming to terms with how the internet affects individuals.  In the 21st century, we have to worry not only about an invasive and sometimes pernicious media culture, but an online ecosystem where any individual can have embarrassing information published about them that goes around the world instantly and is permanently searchable.   

A recent judgement in the European Court of Justice has developed a novel legal approach to privacy in the age of the internet. Mario Costeja, a Spanish national, lodged a complaint against both a Spanish newspaper, and Google. When his name was entered into the search engine, users were directed to articles in the newspaper about a real estate auction to fund his social security debts that had occurred ten years previously. Costeja sued Google to take them down: he argued that the articles were irrelevant, given that the proceedings they related to had been resolved for a number of years.

The court ruled in Costeja’s favour, finding that Google is not just a neutral pipeline conveying information collected by others, but an active participant in collecting, processing and displaying data. So under certain circumstances, Google has the obligation to remove its links to web pages that result from a Google search of a person’s name. The court found that Google’s collection of information about a particular individual “potentially concerns a vast number of aspects of his private life…and without the search engine, the information could not have been interconnected or could have been only with great difficulty.” The court’s order does not require that the web pages in question be removed from the internet entirely: for example, the articles about Costela will still be available through the newspaper’s website.  But Google will not be able to link to them.

The court also held that there should be a fair balance sought between the individual’s right to control his or her internet presence, and the legitimate interest of internet users to have access to that information. That balance has yet to be clearly struck - and it appears that the court intends to leave it to each country’s data controlling organisation to decide precisely what the balance should be. Now, Google has released a webform for EU citizens to request that the company take down links to content about them, although it has stopped short of specifying in detail when it will agree to take links down.  

This ruling demonstrates that the European courts are serious about upholding privacy as a human right, even at the potential expense of free speech. Critics of the ruling have decried the damage that it will do to the tradition of free speech in Europe. They suggest that people will be able to hide information from the public which is in the public interest to know: they envision criminals, politicians and shady business people manipulating the ruling to further their own interests.

It’s true: if the rule is misapplied, public access to information may be impinged. There is still a great deal of fine tuning to be done to make sure the balance between individual privacy and public interest is struck correctly.   

Of course, there will be logistical challenges involved in such a radical change to the law. Since the policy change, the company has received more than 70,000 takedown requests encompassing 250,000 individual web pages. There will also be a teething period, as search engines and data commissioners figure out how to define what content is acceptable to take down. Recently, Google caused controversy by removing a link to a 2007 blog on the BBC website, when a takedown request came from an ordinary member of the public. It will take time to strike the right balance. It will be challenging, but given the benefits that will come to individual privacy, it is a challenge worth taking.

However, those who are warning that this ruling marks the beginning of the end for free speech often make a crucial mistake: that is, they consider Google as equivalent to free speech. They hold up Google as some kind of encyclopaedia of truth, when, in fact, it is a service provider, motivated by profit as much the public interest. If a newspaper were being asked to take down articles giving information about a particular individual, that would be troubling, but this is something different. The information still exists; it even continues to exist online, but the person looking for it has to try a little harder to get the whole picture of an individual’s life.

As reading Brandeis and Warren reminds us, the status quo - where information about anything and anyone is instantaneously available - is a relatively new one. As the internet has developed over recent decades, we have tended to laud its power to democratise information, while downplaying its implications for individual privacy. The fact of the matter is, the vast majority of information on the internet is not important for the public to know. For victims of cyberbullying, internet defamation, or revenge porn - where nude images are posted online without the person’s consent - there is no good reason for anyone to know. For these victims, the European Court’s decision will provide important - if not total - recourse, and protect them from harmful and unnecessary abuse and shame online.