The American constitution refers to three fundamental rights – to life, liberty and the pursuit of happiness. Europe has just added a new right for the digital age, the "right to be forgotten". This is at the basis of an explosive ruling by the European Court of Justice that allows people to delete information they do not like from the results of Google searches.
The case responds to a complaint by a Spanish lawyer, Mario Costeja Gonzalez, that internet searches of his name turned up a newspaper notice from 1998 announcing that his home was to be auctioned to pay off tax debts. He argued that Google, by bringing this forgotten foreclosure notice before the public, was breaching his right to privacy and potentially putting off his clients.
At the end of a five-year legal battle, Spanish data protection authorities sought a ruling from the European Court of Justice, which surprisingly came down in favour of Mr Gonzalez. It is now the law that Europeans can ask Google to remove information from its search results that is “inadequate, irrelevant or no longer relevant”. This seems to open up the prospect for people whitewashing their histories, particularly if they can afford expensive lawyers to argue their case.
Initial reaction has confirmed a split between Europe and the United States. In the US, where freedom of speech is guaranteed in the constitution, commentators have rushed to decry censorship. In Europe, where the balance between free expression and privacy is weighted in favour of the latter, the response has been more welcoming. Viviane Reding, the European Union justice commissioner, said data protection was being brought into the modern era from the “digital stone age”.
The Gonzalez case does indeed highlight how much has changed in a generation. In the pre-digital age, anyone who wanted to investigate Mr Gonzalez’s past would have had to read all the local press to find the 36-word foreclosure notice. Realistically, his issue with the taxman would have been forgotten. If the secret of a happy life is a strong digestion and a weak memory, this case shows the perils of a world where nothing is forgotten.
What the ruling means in practice is more complex. The judges have chosen a technical fix to the problem that may make sense to lawyers but not to ordinary folk. The foreclosure notice is allowed to remain on the website, as a newspaper’s freedom of expression is protected. Google, however, is not a media organisation but is classed as a “data collector” – akin to a credit scoring agency – and therefore required to not disclose information which is no longer relevant, unless there is a strong public interest. So the information remains on the newspaper website, but Google cannot bring it up in response to a search of his name. It is not entirely hidden – but a searcher would have to work harder, such as by searching for foreclosure sales of houses in a certain area.
The ruling opens up a host of questions. Will these privacy laws apply on a country basis, in Spain for google.es, or a pan-European basis, or globally? If different jurisdictions turn up different search results, this will spark endless Twitter traffic publishing “the truth that Google tried to hide” from one country to another. If they are applied globally, then internet search results, which everyone knows can be manipulated by commercial interests, will further lose credibility.
At the moment, it looks as if the ruling will be put into practice by the 28 data protection agencies in the member states of the European Union, each with a different interpretation of the law and under-equipped to deal with a stampede of complainers.
Google, of course, is not the only target of this legislation, but it holds 85 per cent of the search market in the EU and sells advertising inside the bloc. A search engine that had no presence in the EU could theoretically be beyond the reach of the European law.
The background to this is an acrimonious relationship between the EU and American digital giants such as Google, Microsoft, Facebook and Twitter. Commercial disputes have been aggravated by concerns that the US social media firms are abusing their position to profit from Europeans’ private data. More recently, revelations from the whistle-blower Edward Snowden that US internet companies are sharing data with the US National Security Agency have further poisoned the atmosphere.
So, there is no doubt that there is animus among the European elite against the dominance of the US internet firms and a business model based on the premise that “everything that happens must be known”. But no one has come up with a rival European search engine, and one that incorporated the “right to be forgotten” would not get many clicks while Google’s elephantine memory was online.
Europe will continue to try to create a space where privacy is more respected than in the US. The danger is that this will deal a fatal blow to the idea of a global internet where everyone can share the same information.
The European Court ruling has highlighted the problem of the internet’s inability to forget. But a ruling that enshrines the right to be forgotten opens up too many opportunities for people to cover up events in their past that are a legitimate source of public interest. The technical fix involving the manipulation of search results is not the full answer.
When we lived in villages and never strayed far from them, all our neighbours knew our history – and all the gossip about us – going back generations. Nowadays, millions are on the move, doing business and forming relationships with people we know nothing about. A free internet, for all its drawbacks, is a useful tool in a mobile world. The tax problems that Mr Gonzalez struggled to keep quiet are now known to millions of people. Do we think the worse of him? We can see it is ancient history.
Alan Philps is a commentator on global affairs
On Twitter: @aphilps
