Quinnipiac Assignment 13 – ICM 552 – Right to Privacy vs. Right to be Forgotten

Right to Privacy vs. Right to be Forgotten

In 2014, a European Court of Justice ruled that there is a right to be forgotten on the Internet. Essentially, searches can remove older information if –

…the data appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.

The ruling is vague. It passes the individual judgment calls regarding relevancy and adequacy from the courts to the search engines themselves. In practice, because of its dominating market share, this European Court of Justice has almost ceded jurisdiction to Google.

There is no such ruling in the United States. As Jeffrey Toobin put it in The New Yorker

In Europe, the right to privacy trumps freedom of speech; the reverse is true in the United States.

But why?

The Balance Tips Toward Privacy

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In Europe, the balance tips in favor of privacy. And this is at the expense of the freedom of writing and oral expression. This is because of recent European history. On a continent where the memory of the Holocaust is still fairly fresh, courts remember. The Dutch government kept a comprehensive listing of its citizens. The list came from utilitarian motives. That is, there was a desire to maximize benefit, e. g. to provide a better delivery of social services. But when the Nazis came, they used that self-same list to track down Jews and Gypsies.

Furthermore, under Communism and its surveillance state, European individuals found their privacy rights violations. This was particularly by the Stasi in East Germany. Personal information had a use: to harm individuals and to pry into their private lives. Hence there is an overall mistrust of data gathering.

The Balance Tips Toward Free Expression

In the United States, it’s the opposite. Here, where the Holocaust did not directly come, and where the history of free expression goes back to Peter Zenger, the balance spills toward free expression. There is no ‘right to be forgotten’ law in America. And it seems unlikely that such a right would ever become recognized in the law. Instead, the push is in favor of expression. And if there is a take down request for an article, image, or website, it is on a copyright basis.

Remedies

Parties with grievances must seek their own remedy. This is often asking a webmaster to take down an image, article, or link as a courtesy. Barring that, parties also will attempt to take over copyright. So they will demand a take down that way. Lawyers used this strategy when there were leaks of photographs of actresses Kate Upton and Jennifer Lawrence without authorization.

When Worlds Collide

Or, at least attitudes do. There is no world court or global consensus about the Internet. So Google and other search engines must comply with differing and potentially conflicting rulings. These will be about what can and cannot be in the index. As more courts get involved, they will impost dissimilar legal philosophies. Google’s attempts to be in compliance will get more and more complex. There is a very real possibility that search will splinter even more, and searchers in, say, Tijuana, Mexico would see different results from searchers 30 minutes away in San Diego, California. And, potentially, those searchers could cross the border and find suppressed (or not) information online.

For an international phenomenon like the Internet, this sort of parochialism probably won’t last long.