The top court in Europe has just made a strange ruling that will affect the 15 countries of the European Union (EU), and others as well. The court declared out of the blue that Google must remove all references in its search engine if a person requests it. The decision came for all the right reasons. But it is entirely the wrong ruling, infringing on several basic rights while trying to protect the right to privacy.
In effect, the European Court of Justice, which is based in Luxembourg, took a T-shirt slogan and made an entirely new law from it. The slogan is, “Everyone has the right to be forgotten”. Neither the EU itself nor any of its parliaments or governments had considered this idea in depth. Yet, based on a lawsuit by a Spanish man, the court made a sweeping ruling. It will affect tens of millions who benefit from two other important maxims: freedom of speech and the right to publish.
The facts of the case are simple. Spanish citizen Mario Costeja Gonzalez got into financial trouble in the 1990s. He owed money to the government and he was forced to auction his home. The records of his problems are public in Spain, and like many governments, Spain has put most of its public records online. Google thus knew about Mr Costeja’s problems, and was happy to provide the link to the government’s records to anyone who asked.
Last week’s court ruling gave no order to the Spanish government to forget its citizen’s troubles. It specifically ruled that if a newspaper had published any information about them, it need not un-publish it. At this point, of course, the court’s problems are just starting. Did the judges think there is some way to make a published newspaper account disappear?
In any case, the court ordered Google to remove all links to Mr Costeja’s financial records, as he asked. It ordered every other search engine to do the same if the Spaniard requested. It further ordered that every European citizen and resident has exactly the same right. Google and all other search engines must remove references to an individual or company who requests to disappear from the internet search engine.
The legal decision that everyone has the right to be forgotten is so imperfect as to be silly. This unthoughtful court decision, for example, did not even attempt to make a distinction between the obvious extremes. If the court had said that a person may request removal of a link to an embarrassing Facebook page that could scuttle a job application, one might agree. If the court had ruled that Google could reject a request to forget a man charged with beating his wife and children, it would mitigate this legal disaster.
The court painted this alleged “right to be digitally disappeared” with a single brush. It is wrong. Citizens collectively have the right to know about that alleged wife beater, from any source and all sources, including Google links. A website that tracks paedophiles, and publishes their addresses,
is a public service that should not be taken from search engines because a convicted paedophile is trying to be forgotten. Of course he is. But he should never be allowed to disappear.
This disastrous court decision had the single benefit of raising the problem of privacy in the digital age. The Thai government, Asean and Asia should address this problem. Perhaps a new, international group should decide if the validity of takedown requests is possible. This court decision, however, would be better off vacated.