The ruling out of the European Union was stunning: all the arguing and haggling aside by those who thought it would require some sort of agreement and mechanism, Europe’s highest court held in Google v. Gonzales that there already was a right to be forgotten, and Google better shape up.
Whether this is the start of a great new day or the end of one is a matter of priorities, at least for the moment:
Jonathan Zittrain, a law and computer science professor at Harvard, said those who were determined to shape their online personas could in essence have veto power over what they wanted people to know.
“Some will see this as corrupting,” he said. “Others will see it as purifying. I think it’s a bad solution to a very real problem, which is that everything is now on our permanent records.”
The mantra has long been that the internet never forgets, and it is a very real problem. There are no second chances in the digital world when every transitory act and idea finds its way online. For those who believe they’ve been grievously wronged on the internet, the notion of the right to be forgotten is a godsend. For those who want to conceal the truth and manufacture a carefully crafted false internet persona, it’s a godsend too.
For those who do not believe that the internet should become a sanitized garden of positivity, showing only those things that please us and make us happy and concealing the warts we would prefer no one ever see, the notion smacks of eradicating truth and reality, reducing the internet to a fraud.
The court noted that the invasion of privacy search engines create for individuals “cannot be justified by merely the economic interest which the operator of such an engine has in that processing.” Moreover, the court noted that “the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information.” Thus, the court stated, “a fair balance should be sought in particular between that interest and the data subject’s fundamental [privacy] rights.” The court went on to state: “Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”
But who does the balancing? A search engine? How is it to weigh all these things?
Yet, there is a countervailing concern that Marc Randazza raised upon learning of the decision. Without search engines, the internet would still be there, but unfindable. In the early days, businesses used to include their URL in advertising so people could locate their website. Nobody does that anymore, as nobody needs to scribble down the address. Just Google it. And yes, Google is hardly the only search engine, but it’s dominant. The ruling would apply to all, not just Google, and the burdens it might impose would crush lesser search engines, only increasing Google’s dominance.
Randazza’s reaction was that this ruling, maybe, could suck the wind out of Google. He saw it as so large, so powerful, so dominant, that Google owned the internet. If not completely, then enough so that it operated like its own nation-state, deciding our digital fates without the slightest concern. Anything, Randazza argued, that undermined Google’s hegemony was good, as bad as this ruling might otherwise be.
While Randazza’s point was well taken, it reminded me of Isoroku Yamamoto’s response after the bombing of Pearl Harbor:
“I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.”
Solove notes that the EU tends to rule in grand gestures of rights, disconnected from the flip side concerns or the mechanics of how to make those rights happen, and happen effectively. Will a million, a billion, people demand that Google delink to things they hate this morning? Will someone at Google say “no,” it will not be bothered with every individuals’ pet issue and alter digital reality to please the sensibility of everyone with a keyboard.
Will Google finally stretch to its full height and reach, and tell the EU judges that the only thing they plan to delink is their misbegotten opinion?
The relationship between the digital and real world has grown increasingly tenuous, as we have come to recognize that few of the rules of the game apply well, all the while our dependence on the internet grows. There is no going back to the days before the internet, and there is no going to back to its earliest days when users policed themselves.
With government and interest groups all vying for a piece of control, and with interests and arguments flying in every direction and usually without any means of accomplishing their goal without the full and dedicated cooperation of Google, this ruling may have pushed the internet too far. Whether you applaud or hiss at this claim of right isn’t particularly important. Whether Google decides to test its power, to challenge whether the EU, or any other governmental entity, is strong enough to make the internet bend to its will, is at stake.
This may have awakened a sleeping giant, and filled him with a terrible resolve. If I had to bet on the EU or Google prevailing, I know where my money would be.