Should we have a ‘right to be forgotten’ on the Net?

When Edward Snowden pulled back the curtain on the National Security Agency's mass surveillance apparatus, online privacy took on a whole new meaning. And when tech companies in the US use data as the base of their multi-million dollar businesses, consumers often feel powerless against the tools they depend upon.

But it seems the European Union's highest court is giving a little bit more power back to the people. On Tuesday, the European Court of Justice in Luxembourg issued a decision that represents a major blow for Google, ruling that, in some cases, the company must grant users of the search engine the right to delete files, text and images that they may have posted. 

Tuesday's judgement was based on a 1995 data protection law that establishes limited rights to object to the processing of personal information. The ruling means that companies like Google should, in certain cases, allow web users the right to be "forgotten" after a period of time, by deleting links to online pages “unless there are particular reasons, such as the role played by the data subject in public life, justifying a preponderant interest of the public.”

Jeffrey Rosen, president and CEO of the National Constitution Center and a professor at George Washington University Law School, says the ruling is a huge deal not just for Europe, but all over the world.

"It represents, potentially, the biggest clash between privacy rights and free speech rights of the modern era," he says. "Since 2012, Europe has been debating whether to adopt a broad right to be forgotten that would allow individuals to demand the deletion of truthful but embarrassing information about themselves, merely because they don't like it."

Rosen says at the heart of this case is a man from Spain who wanted to delete an online notice about the auction of his home, which was repossessed. He sued a Spanish newspaper, but the Spanish court ruled that the publication did not have to delete the online listing.

"But then in this sweeping ruling, the Luxembourg court said that Google and Yahoo have to remove links to the story," says Rosen. "What's so striking about this is how amorphous the standards are. Basically, it's now up to European privacy commissioners to decide whether information is in the public interest or not, when it's relevant, and when it's been up too long. Because the tech companies can't know in advance whether or not a particular request is going to be granted, they'll have an incentive to remove stuff any time anyone requests it."

Rosen adds that if Google or Yahoo, for example, don't comply with requests for removal, they could become liable for the content their search engines surface. Rosen says he believes this ruling directly conflicts with our fundamental understanding of free speech, calling it a "huge threat" to free expression.

But is this really enforceable? Rosen says maybe. Laws like this are deeply rooted in European history.

"This comes from a French right, le droit à l'oubli, or the right of oblivion," he says. "The French and the Germans have long said that if you have a criminal history, for example, you can remove it after a certain amount of time because people should be able to have a second chance and not always be dogged by their past."

The French and German right of oblivion, says Rosen, is enforceable because of the statute of limitations, which determines the period when individuals can and cannot refer to someone's criminal history. But Rosen says this ruling is fundamentally different.

"But this right, where the standards are so broad, any time that I claim that data about me violates my privacy or dignity, I can potentially demand its removal," he says. "That would literally tie up the Internet in knots. The difficulties of enforcement, that's one of the tech companies' strongest arguments against this. It's just litigation on steroids — this will open up a huge opportunity for aggrieved people who think that truthful but embarrassing information should be removed from Google."

Rosen says this has the potential to change Google from a neutral search engine to a "censor-in-chief" and arbiter of what information is relevant — or damaging.

"It's going to transform the ways Google, Yahoo and others operate in Europe if this decision is sustained and extended," he says.

When it comes to the United States, Rosen says Google is immune from a similar judgement because of the Communications Decency Act, which limits liability to the actual author of the speech.

The law can be complicated, however. Rosen says if an individual posts a funny photo of themselves on Facebook, removing the photo at a later date is no problem. If the same person shares the same photo, but it goes viral, in the United States the photo is then considered other people's speech and is protected, meaning the individual would have no right to remove it. But that's not the case everywhere.

"In Argentina, which applied an earlier version of this 'right to be forgotten,' a pop star demanded the removal of racy pictures of herself that had gone viral," Rosen says. "An Argentinian judge actually ordered Yahoo to remove the pictures under the threat of a fine of a huge amount of money every day. Basically, she erased herself from history, she removed herself from the internet, and if she had been running for parliament she could try to selectively rewrite the past."

This interview first appeared on PRI's The Takeaway, a public media show that invites you to be a part of the American conversation.

When Edward Snowden pulled back the curtain on the National Security Agency's mass surveillance apparatus, online privacy took on a whole new meaning. And when tech companies in the US use data as the base of their multi-million dollar businesses, consumers often feel powerless against the tools they depend upon.

But it seems the European Union's highest court is giving a little bit more power back to the people. On Tuesday, the European Court of Justice in Luxembourg issued a decision that represents a major blow for Google, ruling that, in some cases, the company must grant users of the search engine the right to delete files, text and images that they may have posted. 

Tuesday's judgement was based on a 1995 data protection law that establishes limited rights to object to the processing of personal information. The ruling means that companies like Google should, in certain cases, allow web users the right to be "forgotten" after a period of time, by deleting links to online pages “unless there are particular reasons, such as the role played by the data subject in public life, justifying a preponderant interest of the public.”

Jeffrey Rosen, president and CEO of the National Constitution Center and a professor at George Washington University Law School, says the ruling is a huge deal not just for Europe, but all over the world.

"It represents, potentially, the biggest clash between privacy rights and free speech rights of the modern era," he says. "Since 2012, Europe has been debating whether to adopt a broad right to be forgotten that would allow individuals to demand the deletion of truthful but embarrassing information about themselves, merely because they don't like it."

Rosen says at the heart of this case is a man from Spain who wanted to delete an online notice about the auction of his home, which was repossessed. He sued a Spanish newspaper, but the Spanish court ruled that the publication did not have to delete the online listing.

"But then in this sweeping ruling, the Luxembourg court said that Google and Yahoo have to remove links to the story," says Rosen. "What's so striking about this is how amorphous the standards are. Basically, it's now up to European privacy commissioners to decide whether information is in the public interest or not, when it's relevant, and when it's been up too long. Because the tech companies can't know in advance whether or not a particular request is going to be granted, they'll have an incentive to remove stuff any time anyone requests it."

Rosen adds that if Google or Yahoo, for example, don't comply with requests for removal, they could become liable for the content their search engines surface. Rosen says he believes this ruling directly conflicts with our fundamental understanding of free speech, calling it a "huge threat" to free expression.

But is this really enforceable? Rosen says maybe. Laws like this are deeply rooted in European history.

"This comes from a French right, le droit à l'oubli, or the right of oblivion," he says. "The French and the Germans have long said that if you have a criminal history, for example, you can remove it after a certain amount of time because people should be able to have a second chance and not always be dogged by their past."

The French and German right of oblivion, says Rosen, is enforceable because of the statute of limitations, which determines the period when individuals can and cannot refer to someone's criminal history. But Rosen says this ruling is fundamentally different.

"But this right, where the standards are so broad, any time that I claim that data about me violates my privacy or dignity, I can potentially demand its removal," he says. "That would literally tie up the Internet in knots. The difficulties of enforcement, that's one of the tech companies' strongest arguments against this. It's just litigation on steroids — this will open up a huge opportunity for aggrieved people who think that truthful but embarrassing information should be removed from Google."

Rosen says this has the potential to change Google from a neutral search engine to a "censor-in-chief" and arbiter of what information is relevant — or damaging.

"It's going to transform the ways Google, Yahoo and others operate in Europe if this decision is sustained and extended," he says.

When it comes to the United States, Rosen says Google is immune from a similar judgement because of the Communications Decency Act, which limits liability to the actual author of the speech.

The law can be complicated, however. Rosen says if an individual posts a funny photo of themselves on Facebook, removing the photo at a later date is no problem. If the same person shares the same photo, but it goes viral, in the United States the photo is then considered other people's speech and is protected, meaning the individual would have no right to remove it. But that's not the case everywhere.

"In Argentina, which applied an earlier version of this 'right to be forgotten,' a pop star demanded the removal of racy pictures of herself that had gone viral," Rosen says. "An Argentinian judge actually ordered Yahoo to remove the pictures under the threat of a fine of a huge amount of money every day. Basically, she erased herself from history, she removed herself from the internet, and if she had been running for parliament she could try to selectively rewrite the past."

This interview first appeared on PRI's The Takeaway, a public media show that invites you to be a part of the American conversation.