Craig A. Newman, managing partner of Richards Kibbe & Orbe LLP, is CEO of the Freedom2Connect Foundation, a Washington-based nonprofit established to promote Internet freedom through the use of technology.
This month’s bombshell decision from the European Court of Justice pronouncing a “right to be forgotten” on the Internet was couched as a principled stand for digital privacy. Looking closer, however, one could see a double standard at work: The enormously expensive effects of the decision fall squarely on the shoulders of search engines based mostly in the United States, while the European players left the courtroom free of obligation. The courage of the court’s convictions, it seems, applies only outside the borders of the European Union — a result that, while convenient in the short term, carries ominous implications for Europe’s future.
Although opaque in nearly every particular, the decision settles this much: A lawyer from Spain has the right to demand that Google remove links to a government notice, placed in a newspaper in 1998, that his repossessed home was being auctioned. In plain English, the court determined that the lawyer’s right to be forgotten — at least with respect to the long-ago and potentially embarrassing foreclosure notice — outweighed Google’s interest in linking to that information.
The court, unfortunately, did not speak in plain English. Even worse, it dumped the job of interpreting its words on those ill-equipped to do so: search-engine companies. The Google team is wonderful at writing code, but it is now saddled with the task of making judgment calls over which unflattering references to individuals should be scrubbed from search results. Should links to a doctor’s negative reviews be removed? The past behavior of a politician making a comeback bid? The conviction of a man who possessed images of child abuse? These are just three of the takedown requests that Google has received in the wake of the ruling. To make these determinations, Google has nothing to guide it but the laughably vague calculus of the decision, which requires removal of material that is “inadequate, irrelevant” or “excessive” — whatever those terms mean in the context of a search query — as “fair[ly] balanced” against the public’s right to the information. Certainly, these kinds of concepts cannot be plugged into an algorithm.
Of course, there is nothing novel about high-court opinions that are vague and perhaps even unworkable. Criticism of the U.S. Supreme Court has included the same charges from time to time. But some aspects of the European decision simply don’t add up. Most glaring is the illogical selectivity of the ruling. While the court required Google to remove the link, it let the Spanish newspaper off the hook, meaning the material that actually violates the lawyer’s right to be forgotten is allowed to remain on the Internet. The result makes no sense. If a store at the mall is selling banned products, the problem isn’t cured by removing the mall directory.
By handing down different fates to Google and the newspaper, the court is having its cake and eating it, too — standing up for privacy, only so long as the burden of that stand lands outside the continent.
In the long term, however, the court’s approach could cost Europe severely in lost investment and innovation.
Investors and tech entrepreneurs will surely take note that the cost of providing information over the Internet in Europe has just skyrocketed. Google and other search engines not only face difficult removal decisions. They must also build massive systems to handle removal demands. If foreclosure notices qualify for deletion, that alone could account for millions of requests, to say nothing of unfortunate karaoke performances and Halloween costumes.
While Google may have the resources to forge on in Europe, tomorrow’s Google or Facebook or Tumblr may not. It isn’t difficult to imagine start-ups simply forgoing a European presence, given the high cost of doing business there. It’s a dire consequence, but by creating special rules that apply only within the European Union, the continent has set itself on a path toward cutting itself off from the global community.
The costs of that approach are truly incalculable. Forward-thinking members of the European Union should recognize that and recognize that the European Court of Justice’s attempt to secure cost-free privacy protection is too good to be true.
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