The creeping “right to be forgotten”

The European Union has claimed the authority to regulate search results that appear on American servers in a November proposal regarding the ‘right to be forgotten,’ a proposition that is worrisome to U.S. journalists.

Under the current European privacy law, individuals can ask the European versions of search engines to remove links to information about themselves from search results. Sites like Google.uk and Google.de have been forced to comply with the requests unless the information serves a compelling public interest.

Users who want to access the delisted links are switching from European sites like Google.uk or Google.de to Google.com, which is hosted on U.S. servers.

In an attempt to stop the circumvention, Article 29 Working Party (WP29) — a committee of members from the European Data Protection Supervisor, national data protection authorities and the European Commission — proposed that individual privacy protection in the ‘right to be forgotten’ grants them authority to regulate search engines worldwide.

The WP29 proposal’s assumption that “the impact of the exercise of individuals’ rights on the freedom of expression of original publishers and users will generally be very limited,” is flawed, according to Emma Llanso, the director of Free Expression at the Center for Democracy & Technology (CDT), a non-profit organization that advocates for digital rights.

“This is a vast understatement; the ‘right to be forgotten’ de-listing regime essentially amounts to a notice-and-takedown system where private parties can demand the removal of links to information that is, as the [Court of Justice of the European Union] recognized, true, public, and lawfully posted online,” says Llanso. “Any legal framework that empowers third parties to interfere with others' access to lawful and public information necessarily raises significant freedom of expression concerns.”

Under U.S. law, take-down requirements usually only follow a successful libel suit, where the information has been found to be both harmful and untrue. The current European privacy statute, which was adopted in May, applies to a much broader swath of information that an individual deems “inaccurate, inadequate, irrelevant or excessive.”

“Journalists and others who live under such a regime may only be able to find a self-selected version of a person's history,” says Llanso. “It is particularly concerning that the European authorities continue to downplay the free expression concerns of this kind of government-authorized interference with the availability of lawful content, as this can serve to legitimize the censorship practices of other governments around the world.”

Furthermore, by regulating what appears at the top of search results, the EU’s proposal is rigging the game in a way that damages the integrity of search engines. These sites are useful to the extent that their results accurately reflect the search terms; failure to provide reliable results can prompt users to switch providers, Llanso says.

This tendency to choose a more reliable provider is the very reason for WP29’s November proposal: European-Google users who switched to Google.com rendered the original statute meaningless.

“The European de-listing regime introduces an independent third party into this mix — the person who's demanding that links be removed from searches on the basis of his name — and complicates things for end-users,” Llanso added. “The guidance from the Working Party 29 shows that there is still a significant divergence of opinion between the Data Protection Authorities and many journalists, researchers, academics, historians, and other free expression advocates.”