This week, the European Union Court of Justice ruled that search engine Google can be ordered to amend search results to protect a person’s “right to be forgotten.” It’s a novel idea. It also looks like a deeply misguided one.
The European case arose after a Spanish man, Mario Costeja Gonzalez, complained that a Google search for his name threw up links to a newspaper story from 16 years ago, about his home being foreclosed on and auctioned off. A decade and a half later, to his dismay, his online personality was still closely tied to this event. Someone googling his name would immediately hit on a prominent mention of this embarrassing fact. The court said that the continued online presence of information about Mr. Gonzalez that was “inadequate, irrelevant or no longer relevant” infringed his rights. It ordered Google to essentially make that information disappear, at least to Google searchers.
The protection of privacy is a foundational right in Canada, and in all Western societies. Traditionally, that means the right to be protected from unwanted intrusions into your home and your personal documents and information, particularly from government. But the right to be forgotten, recognized by the European court, is another creature altogether. It is not about keeping private matters private. It is about a right to have parts of an already public history rendered private, scrubbing it from the public record. It is about being able to demand that Google and other search engines no longer catalogue certain blog posts, articles or other online items. It’s creating a right to have already public information made private – essentially erased and forgotten.
The idea doesn’t square with traditional privacy rights. Asking a website or publisher to remove false or defamatory information is one thing. But the information that the European court has ordered Google to scrub is not false. It’s true. Mr. Costeja Gonzalez’s home was repossessed and auctioned off. In future, will newspapers, bloggers, tweeters and Facebook posters be asked to remove information that is true, and when published was news, but is now embarrassing?
Sometimes forgetting can be a good thing. But it can’t be the law.