In Europe this last week, a shot was fired across the bow of the U.S.-based Internet search establishment. While no one knows exactly what it will mean for the future of privacy and search online, we knew this fight was coming and that it may separate Europe from the rest of the Internet world. Prepare for a legal and business battle over the right to be forgotten.
The European Union Court of Justice found that a Spanish man had a right to be free of constant reminders that his home was repossessed several years ago and, to that end, Google could be forced to remove links to the public records discussing this repossession. With such a decision codifying the European view that private information belongs to the individual who it describes, not the companies that hold it, the door is now open for thousands of individuals to petition European Courts to have harmful, if factual, information removed from searches on their names.
Currently, search engine algorithms treat a personal name search exactly like the search for Aristotelian Philosophy, the Menu at Hooters or a recipe for black cod in miso. The search engine scours the web for references to the search term, and it presents those references in an order that the searcher can influence, but based primarily on anticipated relevance to the search term. For example, if you search a company name, you are likely to find the company’s own profile site, Wikipedia page and recent news items long before you will find minor mentions of that company on old social media pages or blogs.
This case illustrates a long-simmering difference in viewpoint between Europe and the United States about the relative value of rights. The U.S., with its Constitutional protection of the press and free speech, tends to value openness of information above other rights. Conversely, as demonstrated by the much stricter defamation laws in Great Britain and by the case discussed above, the countries of the European Union often value personal privacy above the public’s right to know.
In addition, the Internet search industry, primarily based in the U.S., is on the cutting edge of the big data revolution transforming consumer-directed businesses. For the search companies like Google, Microsoft, Yahoo, as well as retailers like Amazon and Ebay, information collection and mining is their core business. Limiting what can be collected, used or displayed runs counter to U.S. law and is a barrier to the big data paradigm that drives the online retail and information industries. These companies have been fighting for the right to collect and use all data available to them, and the European Court’s decision objects to their current business practice, and calls into question their entire business models.
Even ignoring these broader issues, the European decision creates a nest of practical problems for the Internet and the companies that operate on it. If public debt records are scrubbed, does that extend to bankruptcies and to news reports of financial or personal indiscretions? If links to public records must be destroyed on request, then does that rule extend to criminal records. Can thieves scrub their online record of convictions and apply for money-handling jobs? Can child predators delete their past transgressions from the record when applying for teaching or babysitting jobs? What about multiple offences and convictions? Where does it stop?
From a practical perspective, how are the search companies supposed to decide which items may be cleaned and which items are part of our permanent records? These companies should not be the entities to make these decisions, but will each case be decided by a court, or will legislation or regulations clarify the process? The law seems only to apply to searches made in Europe, but it seems like the court wants to impose this standard to all searches of European residents, regardless of whether the search is being conducted in Spain, France, the U.S. or Brazil for example.
The state of California has passed a highly limited “right to be forgotten” law that applies only to social media companies and affects the rights of people to clean out their own social media accounts only from their teenage years. This law addresses a concern that we all have – our mistakes will continue to define us long after we have become different, more mature, citizens. The European Union Court of Justice addressed the same concern, but in a much less responsible manner. Now the industry is left to calculate how to meet the new requirements and what it will mean for the seekers and for those sought by others.