Appeared in the Toronto Star on May 17, 2014 as ‘Right to be Forgotten’ Ruling Lacks Balance

The European Court of Justice shook up the privacy and Internet world last week by ruling that European data protection law includes a right to be forgotten with respect to search engine results that are “inadequate, irrelevant or no longer relevant.” As a result of the decision, search companies such as Google will be required to remove results from its index that meet this standard upon request.

As people flock to remove content from the Google search index – reports indicate that the company began receiving removal requests within hours of the ruling – there remains considerable uncertainty about how to implement the decision, whether it will migrate to Canada, and if a new right to be forgotten will serve the cause of privacy protection or harm free speech and access to information.

The decision arises from a 2010 complaint by a Spanish man who was upset to find that searching his name in Google yielded links to a 1998 announcement in a newspaper on a real estate auction designed to generate proceeds to pay back social security debts. The information was both factual and readily accessible online, yet the man felt that the now-outdated information was a violation of his privacy.

As the case made its way through the courts, several European countries waded into the issue. The Spanish and Italian governments sided with the confirmation of a right to be forgotten, while Austria, Greece, and Poland supported Google’s position that it should not be required to remove lawful content from its search index.

In ruling against Google, the court reached two key conclusions.

First, it ruled that it could assert jurisdiction over the search giant, despite the fact that the processing of the data took place outside of Spain. That aspect of the decision should not have been particularly surprising, since most countries take the position that a real and substantial connection (Google has a Google.es site and actively markets its services in Spain) is sufficient to assert jurisdiction over an out-of-country entity. For example, Canada maintains that its privacy laws apply to organizations outside the country that collect, use or disclose personal information of Canadians.

Second, the court ruled that Google could be compelled to remove links to personal information that is “inadequate, irrelevant or no longer relevant.” While the court suggests that this akin to a right to be forgotten, it is really a right to digital obscurity since the actual content is not removed from the Internet.

Companies may be focused on the practical costs associated with content removal, but many already remove content if served with a valid court order, notification of defamation, or copyright infringement notice. Adding privacy removals may generate additional costs, but they do not raise significant technical challenges.

The legal challenges are far more troubling, however. First, the ruling vests enormous power and responsibility in the hands of search companies and other intermediaries. Rather than leaving difficult questions on the validity or harm of information to impartial courts, the ruling requires search engines to make the call.  Given the potential for liability if they refuse to remove the links, the search engines will likely err on the side of removal.

Second, the ruling does not lead to the removal of the underlying content itself, which in many instances may be both legal and accurate. If there are concerns about third party content (no one doubts the right of an individual to delete content they posted themselves), surely there is a need to address that issue, rather than targeting intermediaries such as search engines.

Third, the Supreme Court of Canada recently ruled that the law must sometimes balance important rights such as privacy and freedom of expression. Yet the European ruling suggests that privacy trumps freedom of expression and the right to information. By eliminating the need for balance, the ruling shockingly undermines important speech rights in return for a bit of online obscurity.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.