The Right to Be Forgotten: Freedom of Speech Vs. Privacy

Google is facing an ongoing battle with European courts.

Google may have to start deleting search results globally due to recent demand by French regulators to censor results. This all stems back to to a landmark decision to implement the Right to Be Forgotten, which occurred last year in Europe. This law essentially allows Europeans to remove links about themselves that they don’t want discovered. Since then, Google has evaluated and processed more than a quarter of a million requests to delist links.

The Right to be Forgotten may be the law in Europe, but whether this can be possible in the US is unlikely when considering the First Amendment. So why is Europe so insistent on this? A series of European court rulings believe Google to be a “data controller” and should thus be required to “delist” links. It was also argued that since users can use other domain names to access contain about a particular French plaintiff, the content should be removed from all Google domains. The French Data Privacy authority (CNIL) gave Google 15 days to comply.

Suffice to say, Google has rejected the demand to have it applied worldwide and has asked CNIL to withdraw its Formal Notice. Currently around 97% of French internet users visit Google.fr, rather Google.com, and when considering these numbers, it is not sufficient enough to start delisting links on google.com. You also have to consider that a keyword search for Google has 923 million average searches per month, compared to Google.fr, which is simply 1.5 million. Given the ease of switching to google.com, it probably won’t be the last time Google will hear from CNIL.

Freedom of Speech

As of now, European versions of Google are able to delete articles from search results, making it inherently inaccurate. It also allows those with the financial clout, to go to Paris and remove content, as a Danish lawyer, Dan Shefet has done. Even though Google put up a good fight, the Danish lawyer was successfully able to remove accusations of malpractice and fraud from Google.com.

Pressures from France are making legal commentators across the globe worried about the ability to pass a law that restricts other global citizens. It also give the green light to other countries with notorious for anti-free speech sentiments to also pass the Right to be Forgotten law. Basically, it’s a “race to the bottom” in regards to free speech.

Content around the world has varying degrees of significance–certain content can be declared illegal in one country and deemed legal in others. For instance, it is illegal in Thailand to speak ill of its King, and Turkey stifles articles that speak out against the government. In fact, Turkish citizens have utilized Twitter and other social media to galvanize support against government wrongdoings before being blocked by the government. We also have Russia which outlaws “gay propaganda.” Fortunately, Google is well aware of these issues and believes censoring search results globally “is a troubling development that risks chilling effects on the web.”

Issues of Privacy

On the other hand, privacy advocates are hailing the Right to be Forgotten as a significant development for human rights. This is contradictory because free speech is also a human right, and hiding public information is anti-historical. Germany has a law called an “interest to be forgotten” so that criminals can reintegrate into society after they have served their punishment. However, if we start creating blanketed rules for specific cases, we are wrongly treating freedom of expression and publishers have to defend their right to publish something.

This is distinct from requests to have personal information removed, in that the Right to be Forgotten targets information in the context of public information and the media.

Furthermore, those who have the financial agency to defend themselves in court have a way to control their image and reputation. It also a tool of censorship, which is of course in the interest of those who have something to hide, rather than having justified claims to have personal information removed.

Furthermore, when information is in the public interest, then is it right to hide it? The European Union’s Court of Justice last year came up with the “right to be forgotten” resulting from a case in involving a Spanish lawyer who had troubled finances. Even though this stemmed from factual reporting, and the accounts were in fact true, the court deemed this as a violation of privacy and ordered to delist links that were considered irrelevant, or no longer relevant, inadequate and excessive.

Whether this law is really about defending privacy is questionable.  You are simply afforded the right for your information no longer appear in search results. Hence, it doesn’t necessarily mean that content is deleted all together–they are simply hidden. While, this doesn’t delete the content all together, making content hard to find is a significant step to stifling information sharing and knowledge building. In fact, it seems to be a frontal attack on search archiving, and it also restricts publishers from publishing controversial material. Not to mention, it doesn’t resolve whether third parties can be considered controllers of the content.

What is clear from this is that extending the right to be forgotten globally, is not at simplistic and straightforward as european regulators are making it out to be. If anything,opens up a pandora’s box of ambiguities on what is deemed, private, personal, or irrelevant.

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