The right to be forgotten online

More than a year ago, in a decision that stunned many American Internet companies, Europe’s highest court ruled that search engines were required to grant an unusual right - the “right to be forgotten.”

Privacy advocates cheered the decision by the European Court of Justice, which seemed to offer citizens some recourse to what had become a growing menace of modern life: The Internet never forgets, and, in its robotic zeal to collect and organise every scrap of data about everyone, it was beginning to wreak havoc on personal privacy.

Under the ruling, Europeans who felt they were being misrepresented by search results that were no longer accurate or relevant - for instance, information about old financial matters, or misdeeds committed as a minor - could ask search engines like Google to delink the material. If the request was approved, the information would remain online at the original site, but would no longer come up under certain search engine queries.

Search engines and free speech advocates, calling the ruling vague and overbroad, warned of dire consequences for free expression and the historical record if the right to be forgotten was widely enacted. Now, they say, their fears are being realised.

Recent developments - including a French regulator’s order that all of Google’s sites, including American versions, should grant the right to be forgotten - suggest the new right may not end with Europe. Under the banner of privacy, some free-speech watchdogs say, a huge and unwieldy eraser is coming for Google results across the globe - even the ones in the United States.

“When we’re talking about a broadly scoped right to be forgotten that’s about altering the historical record or making information that was lawfully public no longer accessible to people, I don’t see a way to square that with a fundamental right to access to information,” said Emma Llansó, a free expression scholar at the Center for Democracy and Technology, a tech-focused think tank that is funded in part by corporations, including Google.

Proponents of the right to be forgotten argue such claims are overblown. They point out that the number of removals so far has been relatively small. Since May 2014, Google, by far Europe’s most popular search engine, has received requests to forget about a million web links, and has removed about 41 percent of those from certain search results. That’s hardly alarming - considering the billions of pages online, it’s difficult to shed many tears for the mere 400,000 or so that will no longer show up.

Some British news organisations, including the BBC and The Telegraph, have criticised the law for allowing the erasure of hundreds of Google links to news articles, including an excerpt from a mass shooter’s rambling manifesto and a slide show entry that called a reality TV star “an annoying, unbearable nag.” But proponents note that delisted news articles are most likely in the minority of links removed. According to The Guardian, which dug into the source code in a recent Google report to investigate the basis for the removals, more than 99 percent of the links removed were those that showed off private personal details, and were not about public figures or news about serious crimes.

Yet all of this may simply be a prelude to a more expansive, and far more worrisome, adoption of the right to be forgotten. Since Europe’s decision last year, several countries in Latin America and Asia have pushed for their own delinking rules, and some of these may elide the protections for free speech outlined in Europe’s version of the law. A more troubling prospect for search engines is the potential for the new laws to be applied beyond local jurisdictions.

In response to the original European ruling, search engines began removing links only from European versions of their sites. For instance, if a French citizen requested the removal of links about his bankruptcy proceedings, Google would delete the results from its European sites - like the French Google.fr and the German Google.de - but not from Google.com, which the company considers its American site.

The overwhelming majority of Google searches in Europe take place on country-specific sites, but because Google.com is still accessible to any European, the French data protection authority, known by its French acronym the CNIL, has ordered Google to remove links from its database entirely, across all locations.

Google has so far refused, and the dispute is likely to end up in European courts. If the French understanding of the law prevails, the regulation could have far-reaching, even chaotic, effects.

 “France is asking for Google to do something here in the US that if the US government asked for, it would be against the First Amendment,” said Jonathan L Zittrain, who teaches digital law at Harvard Law School. He pointed out that, if enacted, the French regulator’s order would prevent Americans using an American search engine from seeing content that is legal in the United States. “That is extremely worrisome to me.”

If other countries that have established a right to be forgotten also push for global adoption, Google says it might need to remove links everywhere to satisfy regulators. “We believe that no one country should have the authority to control what content someone in a second country can access,” Peter Fleischer, Google’s global privacy counsel, wrote in a blog post last week.

A host of free speech advocates have sided with Google. “If we’re asking Google to comply in every version of Google worldwide, it becomes very hard to say where we want Google to draw the line,” said Jimmy Wales, the founder of the online encyclopedia Wikipedia, which has counted about 100 requests for links to its site to be removed from search engines in Europe. “It’s a race to the bottom. Governments all around the world will immediately say, 'Great, we’ll ask for things to be deleted worldwide.'”

Representatives for the CNIL, which has two months to answer Google’s refusal to adopt a worldwide takedown, declined to discuss the case until it devised a formal response. But legal experts in France said the French demand was likely to be upheld, because the original 1995 law on which the right to be forgotten is founded has no territorial restrictions.

Proponents of the law also reacted skeptically to the claim that the right to be forgotten would be used by other countries to force content restrictions beyond those involving privacy.

“That’s nonsense,” said Marc Rotenberg, the executive director of the Electronic Privacy Information Center, a privacy advocacy group. He argued there were ways to limit access to private information that would not conflict with free speech, and he noted that Google already had a process for global removal of some identifiable private information, like bank account numbers, social security numbers and sexually explicit images uploaded without the subject’s consent (known as “revenge porn”).

“A global implementation of the fundamental right to privacy on the Internet would be a spectacular achievement,” Rotenberg said. “For users, it would be a fantastic development.”