Case Study: Privacy and the Right to Be Forgotten

Henri was a well-known shopkeeper and
café owner in a small town on the outskirts of Paris. He was thrust into
a vortex of controversy in the summer of 2007 when he was falsely
accused of sexual harassment by a disgruntled clerk under his
employment. Henri was completely exonerated, but links to old, damaging
articles in the local newspaper remained accessible through Google. That
newspaper was particularly aggressive in its initial coverage of the
events and did not give Henri the benefit of the doubt, despite his
protestations of innocence. Years later, people still brought up the
incident to him or his family, often with an accusatory tone. Henri
wanted this portion of his past, full of these false allegations and
innuendos, to be expunged. Since most people came across this reporting
through their search of Google.fr, he had asked Google for its help in
suppressing the links to these old stories. Google was not interested in
responding to his repeated requests for its assistance in removing
these links.

There
are two attributes of internet data that cause problems for victims
like Henri: internet data are both permanent and easily accessible. Web
pages are rarely deleted, and sometimes those that are deleted are
nevertheless preserved by caching services like Google Cache and the
Internet Archive. At the same time, search engines like Google and Bing
make all of those data exceptionally easy to access.

It
seemed that people like Henri would never be able to control
incriminating information about their past circulating on the
internet. However, in 2014 the European Union Court of Justice issued a
surprising court order against Google. It demanded that the search
engine company remove hyperlinks that connect search engine users to
content that is “no longer necessary,” or “inadequate, irrelevant, or no
longer relevant.” Exceptions are warranted if there is some
“preponderance of public interest” at stake. Thus, if someone like Henri
asks Google to remove these links to “irrelevant” and outdated
material, the search engine company must oblige this request.

The
European Court’s decision was based on the “right to be forgotten,”
which was cited as a basic aspect of a person’s overall privacy rights.
The legal authority of this right to be forgotten is found in the Data
Protection Directive adopted by the European Parliament in 1995. The
Directive established a comprehensive privacy framework in the European
Union, requiring that data “controllers” respect the privacy rights of
all “data subjects.”

Advocates
of this right claim that individuals should be able to insist on the
removal of old, irrelevant material that infringes on their basic
privacy rights. Skeptics of this new legal development, on the other
hand, expressed their unease about the burdens placed on search engine
companies like Google. There was also concern that the deletion of
these links for private interests could lead to “counterfeit histories.”

What
about the public’s right to know this information that is now filtered
out thanks to an individual’s complaints about irrelevancy?

The
EU’s decision establishes a new but more precarious boundary between
privacy and free speech that clearly favors privacy. The decision is in
keeping with Europe’s tradition of giving equal weight to privacy and
free speech rights. In the United States, however, priority is generally
given to free speech rights, and so it is probably unlikely that
a version of the “right to be forgotten” will be codified in U.S. law.

Google
agreed to comply with the European Court’s ruling but acknowledged the
difficulties with implementation. Within a few months after the ruling,
Google had received over 100,000 requests for the removal of links to
“irrelevant” or “unnecessary information.” The EU’s order, however,
applied only to European domains such as Google.fr or Google.co.uk—not
to Google.com itself. Some privacy rights advocates claim that this
doesn’t go far enough and that the ruling should apply globally in order
to fully protect the data rights of European citizens. There are other
questions about how extensively to apply European privacy rules, such as
whether or not publishers should be allowed to appeal Google’s decision
to remove links to their content.

What
is your opinion on the EU’s decision tu more precarious boundary
between privacy and free speech? What are your thoughts about the United
States leaning towards free speech rather than privacy? What do you
think will be the best way to balance privacy and free speech? EU’s way
or USA’s way? Why?