Last week, the European Court of Justice ruled against Google in a landmark case about the so-called “right to be forgotten.” The Court took aim at a very real problem: the fact that an individual’s information can be made available online without his or her consent, and once there, may remain accessible indefinitely. But its solution threatens to harm the flow of information online without actually protecting privacy in any measurable way.
The case involved one Mario Costeja Gonzalez, who was upset that in 1998 his local newspaper in Spain announced in print and online that his property was being foreclosed to satisfy his debts. Because Google indexed the newspaper’s site, the announcement turned up prominently in Google searches of Mr. Gonzalez’s name. The man sued both the newspaper and Google, alleging that under the EU’s 1995 Data Protection Directive the companies should delete the information about the foreclosure because they infringed his right to privacy and were not relevant to his current situation.
The Court generally agreed. It held that, under the initiative, an individual should have the right to request that a search engine remove links to information about the individual that are “inadequate, irrelevant or no longer relevant, or excessive.” Importantly, the individual need not show that revelation of the information is prejudicial, because the right to privacy should override the search engine’s economic interests and the right of the public to find such information. But the Court was careful to note that it would make an exception if the individual’s “fundamental rights” were outweighed by public interest in having access to the information in question.
One can sympathize with Mr. Gonzalez’s plight. His foreclosure happened sixteen years ago, and he would prefer that his former financial troubles not be among the first facts that cyberspace recites about him. More generally, it is exceptionally easy for someone to post false, misleading, or embarrassing information about a victim online, and once that information is published, it is exceptionally difficult for the victim to remedy the situation. This dispute is at the heart of US debates over the repugnant phenomenon of “revenge porn” sites.
But the “right to be forgotten” is an unworkable solution that does more harm than good. As an initial matter, the standard the Court adopts is astonishingly vague. Google and other search providers are not well poised to determine whether information about a specific individual is likely to be “inadequate, irrelevant or no longer relevant, or excessive.” The Court was careful to acknowledge that search engines should balance an individual’s privacy request against the public’s right to the information in question. But as we have seen with DMCA takedown requests, a search provider facing liability is likely to err on the side of granting most requests to remove potentially offending material rather than independently assessing the validity of a request. This is especially likely in light of the transaction cost of evaluating potentially millions of such requests each year.
Moreover, it’s not clear that the ruling helped Mr. Gonzalez in any appreciable way. The Court ruled that Google had to remove its links to the foreclosure announcement, but the newspaper did not have to remove the announcement itself, as it fell under a media exception to the 1995 Directive. And, as Professor Jonathan Zittrain notes (0), the Court had no problem with naming Mr. Gonzalez and relating the story of his foreclosure in its press release about the case, thus illustrating the Streisand Effect of shining a spotlight on the exact information he sought to keep private.
The ultimate effect of this decision is to undermine the Internet’s strongest value proposition: its ability to dramatically reduce information costs. Chairman Wheeler describes the Internet revolution as freeing information from the tyranny of place. Anyone with a net connection can access vast troves of information that were once the privilege only of those who could afford access to universities, libraries, and other information collections. The Internet’s greatest feature is its ability to facilitate information’s desire to be free, but Mr. Gonzalez convinced the Court that this feature was a bug. The result of the “right to be forgotten” decision is an increased cost of acquiring certain information in certain markets, which will fragment the Internet and make it harder for people to find the information that they are searching for.
The problem is magnified by the type of information in question. This is not a case involving the removal of illegally posted material such as pirated movies or revenge porn. This is a public record about a true event that first appeared in a local newspaper. The right to be forgotten ultimately gives individuals the means to sanitize their pasts, blot out information that might prove embarrassing, and ultimately try to hide the truth from others. In the wake of the decision, Google has already been inundated by takedown requests (1), including those from an ex-politician seeking re-election and wishing to hide parts of his record from voters, a pedophile who wants to hide his conviction from the public, and a doctor who seeks to suppress negative reviews by less-than-satisfied patients. Ultimately, no one wins when government facilitates this Orwellian airbrushing of history to distort the truth and present only idealized images of our lives online.