European “Right to Be Forgotten” Eats Free-Speech Rights of Google and Its Users’ Rights Too

In America, you can’t invoke a “right to be forgotten” to suppress other people’s speech on newsworthy (or even not-so-newsworthy) topics, as court rulings like Gates v. Discovery Communications (2004) make clear. There is no general “privacy exception” to the First Amendment. Unfortunately, it’s a different story in Europe, where a lawyer used it to suppress information about him, in a decision issued by Europe’s highest court.

As Kevin Drum notes in Mother Jones, “The European Court of Justice has ruled that Google can be required to delete links to public records even when the records themselves are allowed to remain active:

The case began in 2009 when Mario Costeja, a lawyer, objected that entering his name in Google’s search engine led to legal notices dating back to 1998 in an online version of a Spanish newspaper that detailed his accumulated debts and the forced sale of his property.

Mr. Costeja said that the debt issues had been resolved many years earlier and were no longer relevant. When the newspaper that had published the information, La Vanguardia, refused to remove the notices, and when Google refused to expunge the links, Mr. Costeja complained to the Spanish Data Protection Agency that his rights to the protection of his personal data were being violated.

The Spanish authority ordered Google to remove the links in July 2010, but it did not impose any order on La Vanguardia.

Drum is a progressive who is not sympathetic to corporations like Google, and wants to broaden privacy rights even at the expense of businesses. But as he correctly recognizes, this ruling is discriminatory against Google, and wrongly restricts access to information that is of more than purely private interest:

It’s as if the court recognizes that La Vanguardia enjoys freedom of the press, but not Google. I’m not sure how you justify that, aside from a vague notion that La Vanguardia is a “real” press outlet and Google isn’t. But whatever notions you have of press freedoms, they shouldn’t rely on distinctions between old and new media. If La Vanguardia is allowed to publish it, Google should be allowed to link to it.

We’ll see how this plays out. To me, though, it doesn’t even seem like a close call. These are legal records; they were published legitimately; they’re potentially relevant regardless of whether the debts were cleared up; and they aren’t even that old. I certainly understand Costeja’s annoyance, but that’s not a good reason to abridge press freedoms so broadly.

As the New York Times notes,

The decision stunned Google and just about everyone else. Google said it would need time to study the decision, which is a final judgment and cannot be appealed.The case before the court involved a Spanish lawyer who tried to get Google to remove links to online newspaper accounts from the 1990s of his debt and tax troubles. The court ruled that companies like Google could be “obliged to remove links to web pages” unless there are “particular reasons, such as the role played by the data subject in public life,” not to, according to a summary of the judgment. A search engine would have to remove the links even when the original “publication in itself on those pages is lawful,” the court said. . . .

‘’This ruling opens the door to large-scale private censorship in Europe,” said James Waterworth, the head of the Brussels office for the Computer and Communications Industry Association, which has Facebook, Microsoft and Google among its members, as well as European companies like BT and T-Mobile. ‘’While the ruling likely means to offer protections, our concern is it could also be misused by politicians or others with something to hide who could demand to have information taken down,” he said.

This ruling infringes the right of Google users to receive relevant and potentially useful information. The right to receive information from a willing speaker is protected by free-speech guarantees (as recognized in court rulings like Martin v. Struthers and Virginia State Board of Pharmacy v. Virginia Citizen’s Consumer Council), and the European Convention on Human Rights does contain free-speech guarantees (although such rights are often more limited than under America’s First Amendment). This wrongly created “right to be forgotten” should have been recognized to infringe on the free-speech and free-press rights of Google itself, not just its listeners. (Moreover, in the U.S., constitutionally-based privacy rights only apply against the government, not other private individuals or speakers.)

The fact that Google is a corporation does not matter. Corporations have free-speech rights, too. The text of the European Convention on Human Rights is clear that it does not apply just to humans, stating in Article 34 that “any person, non-governmental organisation or group of individuals claiming to be the victim of a violation” may seek redress. For that reason, court rulings have routinely applied the due-process protections of Article 6 of the Convention to corporations. See Michael Addo, Human Rights Standards and the Responsibility of Transnational Corporations (1999) at pp. 194-95 (discussing four such cases, including (1) Dombo Beheer v. Netherlands (1993), (2) Editions Periscope v. France (1992), (3) Union Alimentaria Sanders SA v. Spain (1989), and (4) Societe Stenuit v. France (1992)).

The most important First Amendment cases in the past half century have been brought by media companies, such as New York Times v. Sullivan (1964), which overturned a damage award against a media company for libel (and in the process radically cut back the reach of American defamation law), and New York Times Co. v. United States (1971), which ruled in favor of two media companies seeking to publish the Pentagon Papers. Most constitutional rights have been held to apply to corporations (and corporations in general, not just media corporations).

Google also should be protected by free-press guarantees, since it generates a vast and continuous stream of information. Free-press guarantees cover even far less prolific web information sources, such as bloggers and other web sites. See, e.g., Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014) (blogger was member of media for purposes of the First Amendment); O’Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal. App. 2006)(blogger covered by media shield law).

The legal duty to remove links that the European Court of Justice imposed is hopelessly amorphous and uncertain. As the New York Times notes,

The court said data privacy officials in European countries would have the final say on whether a link should be removed, but gave no objective standard beyond saying that search links should be “relevant.” It also said Google should err on the side of removing links when requested.

But one person’s relevance is another’s ancient history. Should a businessman be able to expunge a link to his bankruptcy a decade ago? How about five years? Could a would-be politician get a drunken-driving arrest removed by calling it a youthful folly?