Earlier this year, the European Union Court of Justice ruled that Google and other search engines can be ordered to alter the results of online queries in order to protect a new right: “the right to be forgotten.”
A Spanish man, Mario Costeja Gonzalez, had complained that his past kept following him around. Sixteen years earlier, his home had been foreclosed on and auctioned off. Sixteen years earlier, a newspaper story had mentioned those facts. Sixteen years later, the news still showed up on Google when one searched for Mr. Costeja. According to Europe’s highest court, his rights were infringed by the easy searchability of that information. It ordered Google to protect his right to be forgotten, by writing that old news out of its Internet searches. And it ruled that Mr. Costeja, and all future Mr. Costejas, had a right to be free from search results that produce information about them that is “inadequate, irrelevant or no longer relevant, or excessive.”
What happened next is no surprise. After the court’s decision, all hell broke loose. All sorts of people are now coming to Google, asking for part of their history to be forgotten. Google says that, since May, it has received over 70,000 “take-down” requests, covering 250,000 Web pages. Those numbers will surely grow, and apply to other search engines. The precedent is unprecedented. Search engines are in the business of finding information. Should they also be forced to lose it?
The right to privacy is one of the most fundamental rights in a liberal society. It has long involved the right to live a private life without interference, preventing others and especially the state from prying too deeply into one’s personal affairs. It is also a guarantee that the state will keep confidential certain information to which the police or other authorities may need to have access, but which no one else should know. There are also long-standing laws against libel and slander: You can’t go around spreading defamatory falsehoods.
But the European court is taking notions of privacy and protection of reputation, and stretching them in a new and untenable way. The case that sparked those 70,000-and-counting take-down demands isn’t about a right to be protected from defamatory falsehoods. The story about Mr. Costeja that the court ordered Google to un-find was true, and it was news. But in Europe at least, the court has created a right to demand that search engines lose such information. It has also got Europe’s judges into the impossible business of determining when something that was newsworthy ceases to be.
The European court has not, however, ordered newspapers to disappear old news stories. That would violate freedom of speech and freedom of the press. It has instead simply decided that search engines aren’t entitled to the same protections as journalists – and can therefore be ordered to disappear search results that might find those old news stories.
That makes the new rules less than comprehensive, which is a good thing. But it also makes the principle behind them even harder to understand, much less justify. It’s like admitting that ordering the removal of certain books from the library would be a violation of freedom of speech – while simultaneously ordering the scrubbing of those same books from the library’s card catalogue. The books are still on the shelves. They’re just really hard to find.
The European court’s decision was wrong – but it was right to wonder and worry about how the Internet age is changing the nature of privacy. Once upon a time, there was no need to talk about a right to be forgotten: It was a thing that just happened. No court intervention was required. Forgetting and being forgotten, getting lost, being undocumented and unknown was a fact of life for most of human history. It was also a fate that could to some extent be chosen: People could, for example, come to the New World to make a clean break and a new start, leaving the past behind, along with old identities, names, misdeeds and mishaps.
That is mostly no longer possible. From credit records to tax rolls, from news databases to social media fingerprints, the amount of information available on each of us is greater than it has ever been. The question is what should be public, and what should remain private.
It might not be so difficult to come up with answers – if we stick with the principles that have long served Canadians: freedom of speech and the press, protections against libellous speech, and a deep body of privacy law. Part of that last principle are rules covering what private corporations and especially government can do with your personal information, and whom they can share it with. Governments keep all kinds of records on people; you can’t run a modern state – a legal system, a tax system, drivers’ licences and so on – without them. Those databases are necessary – but so are broad restrictions on who has access, and how they are used.
Consider police databases. The police need to have comprehensive info not only on people with criminal records, but people who have had contact with the police, including mental health incidents. Where it can get problematic is how police use this information – and whom they share it with. The increasing use of police checks by employers, voluntary organizations and other branches of government often pushes beyond the bounds of reasonableness and privacy. A police database contains things that police may need, but which a wider audience shouldn’t necessarily have easy access to, such as mental health records.
Because Canadians have no choice but to give reams of private, personal information to government, they should be able to expect that information will be kept confidential. They should expect the same of information given to private organizations: banks, credit card companies and so on. But when it comes to public, legal and newsworthy information? To be forgotten may sometimes be a wish. We don’t see how it can be a right.