Europe’s top court ruling that forces internet search engines to remove links containing embarrassing material about an individual’s past may have significant implications on the future of freedom of speech online, George Washington University law professor Jeffery Rosen warns.
Or, as Oxford professor Viktor Mayer-Schonberger sees it, the decision could have little impact, and the online world tomorrow will be much like the online world today.
Either way, the ruling by the Court of Justice of the European Union fuels the debate over online privacy rights versus freedom of speech and online censorship.
The ruling is certainly welcome news for privacy advocates who for years have been championing the so-called "right to be forgotten" — the right to erase the online presence of an individual’s past transgressions over a certain period of time.
Supporters of the right to be forgotten have charged it's unfair that an individual’s infraction committed in the past continues to pop up in an internet search, particularly if that person's life has dramatically changed.
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But opponents complain that this is the equivalent to censorship and worry that it gives people the ability to craft their biography, leaving out inconvenient parts of their past. More troubling, it puts in place a system where internet providers act as the arbiter of what's relevant information, they say.
'Stunningly significant decision'
Rosen, who is also the president of the National Constitution Center, called the ruling a “stunningly significant decision” that “runs the risk of turning internet service providers like Google and Yahoo from neutral content hosters into censors-in-chief for the entire globe."
The case centres around a Spaniard who found a search on his name turned up links to a notice that his property was due to be auctioned because of an unpaid welfare debt. The notice had been published in a Spanish newspaper in 1998, and was tracked by Google's search engine when the newspaper digitized its archive.
The Spaniard argued that the debt had long since been settled, and he asked the Spanish privacy agency to have the reference removed. In 2010, the agency agreed, but Google refused.
In its ruling, the European court said people may address requests directly to the operator of the search engine, "which must then duly examine its merits.”
"The internet service providers, like Google, because of this legal uncertainty, will now have a growing incentive to take down any material that people object to in order to avoid the risk of liability. So the decision could have a dramatic chilling effect," Rosen said.
But Mayer-Schonberger, professor of internet governance and regulation, said concerns about the judgment are overblown. He rejected the notion that search engine providers are “neutral conduits,” saying that every month, Google and many other search engines take out millions of links, based mostly on intellectual property
“The neutral search engine doesn’t exist. It’s a myth," said Mayer-Schonberger, author of Delete: The Virtue of Forgetting in the Digital Age.
He said the European court decision does not restrict freedom of speech by any stretch, and instead, creates "a very delicate balancing act" that includes the right of the general public to have access of information and surely is "not opening the doors to millions of individuals who are requesting takedowns right away.”
Makes access 'a little more difficult'
According to Mayer-Schonberger, the ruling reaffirms freedom of speech by not requiring the actual newspaper in the Spaniard's case to take anything down, but just requires Google to remove the link.
"It’s still out there. It’s still in the newspaper archives. It just isn’t obvious," he said. "Access has gotten so easy and so cheap. All this does is to make access a little more difficult. You just need to search it a little longer."
Avner Levin, director of Ryerson University's Privacy and Cyber Crime Institute, said the decision may not be exactly where we want the balance to end up, but that it’s a good first step in terms of privacy protection.
"We don’t want people to have the right to control information about them without any kind of balance. Obviously people would love to just present an image of themselves that is in the best positive light," he said.
"I think the challenge is how do we balance it. There is a wealth of information about people out there. I think it might not be a bad idea to allow them to control how information is presented about them in certain cases."
But don't expect any similar rulings in Canada, Levin said.
“I’m not so sure that we would be so quick to take off lawful information in Canada. I don't think that would fit with the way that we strike the balance."
Still, Levin said he holds out hope that Canada would adopt some of those protections.
"Maybe we don’t put the balance exactly where they put it, but I think the ideas they come up with are very interesting and we should explore them further."