It is not my place to comment on whether the European Court of Justice has appropriately interpreted and applied EU law. Moreover I am very sympathetic to the desire of individuals in Europe and elsewhere to maintain a zone of privacy from the increasingly powerful encroachments of current technology. This sentiment is running particularly hot in Europe these days thanks to the Snowden revelations concerning the extent of US surveillance and the still troubling recollection of Stasi and other authoritarian domestic spying. Nonetheless I think the Court’s decision makes bad public policy – policy which is at risk of being further extended by a European Commission proposal to formalize the “right to be forgotten” in a new Privacy Directive.
So here is my admittedly American view of the core issue. If there is a libel or gross inaccuracy contained in a published article which happens to appear in Google or other search results the remedy should lie in a direct action against the original publication not against the electronic tool which makes it possible to find the faulty content. To me going after Google or Yahoo or Bing is tantamount to suing the maker of an old-fashioned library card catalog if it gives you the Dewey Decimal Number by which you can locate a pornographic or seditious text in a large library. We may not like the powerful messenger but our complaint lies with the original publisher.
If the European Court of Justice or more appropriately the EC insists on placing the burden of action on Google then a more tailored remedy would be to require search engines to provide an equally prominent right of rebuttal to the aggrieved claimant (i.e. the right to post and link correcting information or just the other side of the story) rather than requiring the search engine to delete the link entirely. This remedy would have found favor with the great US Supreme Court Justice Louis Brandeis who was famous for his observation in support of a public airing of information that “sunlight is said to be the best of disinfectants.” In his 1927 concurring opinion in Whitney v. California 274 U.S. 357 Justice Brandeis seemed to presage the outcome of the Google case: “If there be time to expose through discussion the falsehood and fallacies to avert the evil by the processes of education the remedy to be applied is more speech not enforced silence.”
It is easy to blame the decision of the European Court of Justice on a lack of understanding as to how the Internet actually works. Indeed it is naïve to think that simply making the offending article invisible to Google searchers will make it disappear given the copying of content as it propagates across the web and resources such as the Wayback Machine. However there is something deeper at work: a fundamental difference between Europe and the United States as to the role of free markets vs. government action. The Google decision can be viewed as the judicial expression of a deeply held European view that it is the responsibility of government to police the media and to intervene to censor and erase offending content. The US approach in contrast is best captured by the Justice Brandeis quote above: the most effective remedy for misleading speech is more speech so as to permit an educated citizenry to make an informed decision.
The immediate result of the Google decision will be a more geographically fragmented Internet; some minor inconvenience and cost to search engines and a boon to private investigators and business intelligence providers. These latter firms will enjoy greater pricing power as information concerning individuals becomes less readily available through free and generally available sources like Google. As I tell my teenage kids information once published never disappears. It is always available to the deep-pocketed litigant or the prospective employer – it may just be a bit harder to obtain for the casual Google user. This is a perverse result if one truly cares about personal freedom and privacy from government or corporate surveillance but it might just satisfy the 19th century dueler.
