The Right to Remember

The European Union Court of Justice's recent ruling in favor of a "right to be forgotten" has roiled the Internet industry and observers alike. While on the face of it, the court's decision would appear to be a victory for individuals and their desire to make unwanted references to them to go away, it brings a host of other unintended consequences and considerable uncertainty.

As Jonathan Zittrain argues in the New York Times, "how an individual's reputation is protected online is too important and subtle a policy matter to be legislated by a high court". Also, while the decision gives an individual the right to ask Google or other search engines to delete the links to the "no longer relevant" content, it doesn't require the information itself to disappear or be "forgotten". It's an odd form of censorship and something that would be challenged on 1st Amendment grounds here in the US.

Not surprisingly, two of the earliest requests that Google has received are from an ex-politician seeking re-election who wants a link to a story about earlier misbehavior removed and a pedophile wanting references to his past conviction taken down.

The ruling has pitted the understandable desire of individuals to purge search results of embarrassing or uncomfortable references against the right of others to access legal and accurate information. Shouldn't there also be a "right to remember"? Don't we as citizens have the right to know about a politician's earlier misdemeanors or a neighbor's previous child abuse convictions?

What is truly remarkable about this ruling is that the Court has made Google and (other search engines) judge and jury in deciding what gets removed and what is in the public interest and therefore remains. So a company based in Mountain View, California will adjudicate individual requests from Dublin to Sofia and from Estonia to Malta as to what stays and what's removed. What that what the Europeans wanted?

Take a hypothetical case of a German businessman who wants a search result removed that references a failed venture in the 1990's. He approaches Google Germany to have the link brought down and, fearing a court challenge, quickly removes it. But what if it still appears in a search or, for that matter, in a Google search in the UK? And what if this hypothetical businessman search result also references his estranged wife, who was a partner in the failed business. Does she get a say? And if she prefers to keep the link up, who wins?

There are those in the US who favor a "right to be forgotten" law, particularly for young people. They would like to see a mandated opportunity to let kids wipe the digital slate clean when they come of age, so their teenage transgressions are not seen by prospective colleges or employers.

Of course, all the major social media sites already provide a delete button and Facebook has led the way with their social reporting tools, that allow a user to contact the person that has posted an unwanted photo and ask them directly to take it down. Far better than asking Facebook or a court to do so. And it is far healthier to ask our kids (and ourselves) to be more responsible and to think twice before we post.

So all eyes are on Europe and how the Court's ruling will work in practice. The idea of a European search engine to compete with Google seems to have only receded as legal requirements on a start-up just got more onerous. What does seem certain is that the broader issues of internet governance just got messier and the law of unintended consequences will be the most likely outcome.

(Disclosure: The Family Online Safety Institute, a registered charity, receives financial support from Google and over 30 other Internet companies as well as Trusts and Foundations.)