EU’s top court endorses censorship of embarrassing facts

Since the European Union’s top court endorsed “the right to be forgotten” last week, Google has received more than 1,000 requests to remove links to embarrassing information from its search results. BBC News reports that the complainants have included a suspended university lecturer, an actor who had an affair with a teenager, a politician irked by an article about his behavior while in office and “a man who tried to kill his family.”

According to the European Court of Justice (ECJ), national data protection agencies and judges are supposed to weigh the competing interests in each of these cases and decide which will prevail: the right to be forgotten or the right to know. This misbegotten decision illustrates the threat to freedom of speech posed by an amorphous, free-floating right to privacy, unmoored from contracts, property rights or constitutional restrictions on government action.

The case involved a Spanish lawyer, Mario Costeja Gonzalez, who was angry that results from Google searches of his name included links to newspaper pages from 1998 that carried an announcement of a real estate auction aimed at paying off his social security debts. Since his tax problem had been resolved years before, he felt that making information about it available online was unfair and misleading.

In 2010, Costeja Gonzalez filed a complaint with the Spanish Data Protection Agency asking that the newspaper, La Vanguardia, be required to remove or expurgate the pages and that Google be required to stop listing them in search results. The agency rejected the complaint against La Vanguardia because publishing the auction announcement was legally justified, but ordered Google to comply with Costeja Gonzalez’s request.

Google appealed to Spain’s National High Court, which sought guidance from the ECJ. Applying a 1995 E.U. directive aimed at protecting the “right to privacy with respect to the processing of personal data,” the court said search engine operators can be forced to expunge references to accurate, legally published information that people would prefer to keep hidden, even when the information remains online.

The ECJ focused on search engines, as opposed to original publishers, because they engage in “data processing” and because they make unfavorable facts more accessible. But the logic of the ruling covers any sort of aggregation, including newspapers’ archives of their own content, while the logic of the alleged right to be forgotten applies to any publicly available “personal data” (defined as “any information relating to an identified or identifiable natural person”), no matter where it is stored or how it is presented.

The standard for issuing a censorship order is whether the information is “inadequate,” “irrelevant or no longer relevant,” or “excessive” in light of the purposes for which it was collected. Although there might be “particular reasons” why information that people seek to suppress should remain available, the ECJ said, the collection of personal data affects “fundamental rights” that “override, as a rule, not only the economic interest of the operator of the search engine, but also the interest of the general public in having access to that information.”

The implications are sweeping. For any given political candidate, public official, job applicant, potential business partner, doctor, date, future son-in-law or new neighbor, there will be many facts available online that are arguably relevant to important public or private interests — which means they are also arguably irrelevant.

Then there is the question of whether the interest at stake, whether it’s evaluating a politician or avoiding yet another bad relationship, outweighs the research subject’s interest in concealing facts that reflect poorly on him. This is a legal morass that invites arbitrary line drawing.

In the United States, the “right to be forgotten” would be a nonstarter because our Constitution guarantees freedom of speech, a principle that is incompatible with government decrees to send inconvenient truths down the memory hole. Anyone concerned about fundamental rights should think twice before letting the state decide what people need to know.



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