Can too much information be unfair? In May 2014, the European Union Court of Justice passed a ruling which required the search giant Google to remove items from its search results under certain circumstances. The ruling became known as “the right to be forgotten,” guaranteeing that certain news stories or websites which are deemed to be incorrect or no longer relevant can be essentially hidden from web searches.
The impetus for this was the case of Mario Costeja Gonzalez, a Spanish lawyer who wanted to remove an item published in a newspaper about the auction sale of his house. The item alluded to his past financial struggles. He claimed that his past records were irrelevant, the debt had been long since paid off and the search results were harming his current work. The case began when Gonzalez complained to the Spanish Data Protection Agency, but was later referred to the Spanish High Court and, ultimately, the European Union Court of Justice.
Europe was a particularly strong venue for the case since, in 1995, the EU parliament adopted a Data Protection Directive which protects both privacy and the free movement of data between EU member countries. Among other things, the directive asserted that “data-processing systems are designed to serve man; whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to economic and social progress, trade expansion and the well-being of individuals.”
In its ruling, the court determined that privacy outweighed commerce and a public record in the Spanish case. The court wrote that “individuals have the right — under certain conditions — to ask search engines to remove links with personal information about them. This applies where the information is inadequate, inaccurate, irrelevant or excessive … The court found that in this particular case the interference with person’s right to data protection could not be justified merely by the economic interest of the search engine.” The court pointed out, however, that the right to be forgotten is “not absolute” and must be evaluated on a “case by case” basis.
The law is only applicable in Europe, but does apply to U.S. companies doing business there. It impacts Google search engines including Google.de in Germany, Google.es in Spain and several others. Google has about 85 percent of the online search market in Europe, according to the New York Times. The ruling has spawned a number of other suits around the world including cases in Germany, China and Argentina.
In an article published in the Northern Kentucky Law Review, Jasmine McNealy argues that the right to be forgotten was best articulated by Columbia law professor and intellectual Alan Furman Westin. “The right to be forgotten is an idea based in a Westinian conception of privacy: that people and organizations should be permitted ‘to determine for themselves when, how, and to what extent information about them is communicated to others,’” McNealy wrote.
In the United States, the case is complicated by the First Amendment with a broad protection of free speech. Cases brought under similar circumstances as the Spain case have not fared well in U.S. Courts. For instance, in 2010, a California man named Harvey Purtz filed a suit against the publisher of the newspaper the Daily Californian. The issue was an item about Purtz’s son, Chris, who was arrested for a confrontation with workers at a San Francisco strip club. Chris Purtz later died and the father argued that the continued publication of the article about him in the paper’s online archives inflicted emotional distress on the family. The judge ruled in favor of the newspaper.
This has typically been the case in the U.S. The Supreme Court, dating back to the New York Times v. Sullivan (read the book review here) has set a very high bar protecting the right of free speech and the rights of publications to publish both fact and opinion.
But some now contend that new technology requires new restrictions. It no longer requires looking through archives or saving a copy of the newspaper. An incident like a DUI arrest, bankruptcy or some other incident can be the top item in a search about a person’s name depending on the formula used by the search engine. Worse still, articles containing incomplete or even erroneous information can linger online forever. People motivated by animus—-jilted exes or business competitors—-have been known to intentionally post false items. Does the free speech standard protect this type of speech? And what is the obligation of the search engines to police the content that links to false or out of date information?
These questions are only beginning to be tackled in U.S. courts. The right of privacy has long been protected dating back to an article penned by U.S. Supreme Court Justice Louis Brandeis and attorney Samuel Warren. Writing in an 1890 Harvard Law Review article, they called for added protections for “the right to be left alone.” Privacy today is certainly under assault and the tension between public information, free speech and privacy are growing more pronounced every day. The decisions made by courts and lawmakers today will set a precedent for years to come.
Salem Solomon (@salem_solomon) is a journalist, graduate student and a teaching assistant at the University of South Florida St. Petersburg. She is currently based in Washington D.C. and working on her professional practicum at Voice of America’s Horn of Africa Service.