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, older information can be removed from searches 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 and 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 means that this European Court of Justice has almost ceded jurisdiction to Google.
In Europe, the right to privacy trumps freedom of speech; the reverse is true in the United States.
The Balance Tips Toward Privacy
In Europe, the balance tips in favor of privacy (and at the expense of the freedom of written and oral expression) because of recent European history. On a continent where the memory of the Holocaust is still fairly fresh, courts are reminded that the Dutch government kept a comprehensive listing of its citizens. The list was gathered under utilitarian motives, in that 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 being violated, particularly by the Stasi in East Germany. Personal information was used 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
The opposite is true in the United States. 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 a request for an article, image, or website to be taken down is made, it is made on a copyright basis. Aggrieved parties are encouraged to seek a remedy of asking a webmaster to take down an image, article, or link as a courtesy. Barring that, parties also will attempt to take over copyright and demand a take down that way. This was the strategy employed by lawyers when unauthorized photographs of actresses Kate Upton and Jennifer Lawrence were leaked.
When Worlds Collide
Or, at least attitudes do. Without a world court or global consensus about the Internet, Google and other search engines are going to have to comply with differing and potentially conflicting rulings about what can and cannot be indexed. As more courts get involved, and dissimilar legal philosophies are imposed, Google’s attempts to be in compliance will get more and more complicated. 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.