A recent ruling by European Court of Justice on the “right to be forgotten” subordinates the public’s interest in factual information to the individual’s right to privacy, and could have ripple effects worldwide that will alter how we perceive the “truth” of our internet searches. On May 13, the ECJ ruled that Google and other search engines must remove links to “irrelevant” results about individuals at their request. Individuals may request removal of any search results that contain information – acknowledged to be true and lawfully published by third-parties on the internet – that is deemed “inadequate, irrelevant, or no longer relevant, or excessive.”
On the facts of that case, the ECJ felt that two 1998 newspaper articles advertising a real estate auction in a legal proceeding to recover an individual’s social security debts were sufficiently “irrelevant” to that individual in 2014 that links to those articles should not appear when that individual was searched on Google. The ECJ acknowledged that publication of the articles by the newspaper on its own website was lawful, but found that the ease with which internet users were able to access those third-party sites through a Google search violated the individual’s right to privacy. Indeed, the court found that the list of search results, rather than the actual website publishing true information about an individual, constituted a “more significant interference” with the right to privacy, since internet search engines make access to information “appreciably easier” for internet users and play a “decisive role in [information] dissemination.”
The court found that Google and other search engines process personal information in order to produce search results to internet users, as part of their ultimate commercial goal of generating advertising revenue. It concluded that this commercial interest is insufficient to outweigh individuals’ right to privacy.
The trouble with the ECJ’s opinion is that it is completely devoid of any guidance about how search engines are to determine the inadequacy or irrelevance of particular search results. Knowledge that an individual had a debt problem that led to the auction of his real estate sixteen years earlier may not be relevant to the internet user searching him before a blind date, but it could well be of interest to potential lenders. The court’s ruling merely states that search engines are to give “regard to all the circumstances of the case” and then erase any irrelevant information from search results. Absent concrete guidance or a list of factors to consider when weighing the relevance of any particular search result, search engines may feel compelled to take the path of least resistance and remove results whenever requested.
This is especially true given the litigation incentives of the interested parties. Individuals have a personal stake and interest in pursuing removal of unwanted search results, whereas the public’s general interest in preserving public information is diffuse and rarely supported by a focused effort or advocate. In a litigation context, without a distinct party advocating the “public information” position, that argument is left to Google and other search engines. As seen from the court’s ruling, the result is that the issue is viewed through the prism of commercial interest, rather than from that of the larger public interest in information.
Whether that ultimately would have mattered, of course, is uncertain. Unlike in the United States, the EU privileges the right to privacy as a fundamental human right, on par and sometimes ahead of other interests, such as freedom of speech.
The ECJ’s ruling may usher in a new era of web censorship, where individuals are able to curate their online personas extensively. To some degree, social networks already afford individuals much of that capability, allowing them to post, edit and delete their own content, and also remove unwanted comments, tags and links. The distinction is that internet users accept and expect that social media profiles are scrubbed by their owners, but they have very different expectations from their Google searches. When an internet user uses a search engine to research an individual, he or she expects to find relevant results – whatever there is to be found. If a search returns few or no results, we assume that there are no results to find. The ECJ’s ruling will change how we perceive our search results – at least of those covered by the ruling – because we can no longer trust their completeness.
Whether that actually furthers the goals of the court, or whether it simply entails a bit more effort on the part of internet users to investigate others, remains to be seen.
Caveat Vendor is Paul Hastings’ Consumer Issues blog. We welcome your feedback. Please contact our blog editor with any thoughts or suggestions.
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