Why the EU court got the decision right

In a decision that surprised much of the world, the European Court of Justice ruled earlier this month that individuals may now petition Google to remove information about themselves that shows up in search results. The so-called “right to be forgotten” is a long overdue measure to support human dignity on the internet.

The prevailing reaction, though, has been alarmist – negative editorials abound about the constraint of online freedom, the muzzling of speech and the threat of a sanitized Orwellian future.

This Sturm-und-Drang is a kneejerk response that lacks serious reflection and intellectual precision. We must first step back and ask ourselves why so many of us draw a straight line from Google to digital free speech. They are surely not the same, and to argue so is to ignore an essential fact: Google is a machine. It is a very good mechanism for uncovering objective content – and also subjective content.

Yet, as with all search engines, Google has its flaws. One of these is the way it displays outdated, one-sided and often inaccurate material about people, a reductionism that can harm and humiliate them disproportionately, both professionally and privately. (Full disclosure here: the company I founded, Reputation.com, works to help people protect their online identity). Prior to this decision by the European Court, there was next to nothing an average person could do to change that.

Providing an option to de-index specific websites is not subverting online freedom or censorship – it’s a righting of the scales. The decision does not remove content, merely the most visible conduit to the content, the links. There can be no censorship without the wholesale scrubbing of the internet: the removal of not just the paths to content but the actual websites themselves. A determined person or researcher could still locate the information they seek, whether it’s in an online news archive or in the digital proceedings of a specific court. The ruling leaves this firmly in place.

The court also correctly sought to allay reasonable fears about the undue sanitization of the internet through the inclusion of a key exception: that content in the public interest should remain visible in search results. That’s a laudable, and essential, aspect of this decision. There are those public figures – politicians, historical figures, persons of influence – whose lives and deeds are relevant to our current understanding and future collective memory. There are also those people and organizations whose criminal acts or major civil misdeeds are such that they potentially pose a risk to the common good – and they too should be visible.

It’s clear that the European Union is much more assertive when it comes to shaping the boundaries of technology. For the law to keep pace with the exponential leaps and bounds of technology is a near-impossible task. Yet regulators must attempt to create legal remedies that are flexible enough to be applied to future iterations of technology and sharp enough to have meaning.

The EU has done so with net neutrality, voting in favour of tough rules that ensure a free and unencumbered internet. With this ruling, it has done so again in a great and lasting acknowledgement of privacy as a human right, the notion that “no one shall be subjected to arbitrary interference with his privacy … nor to attacks upon his honour and reputation”.

I’m an American and my country tends – rightly, in my view – to exercise extreme caution in regard to measures that may affect our most precious freedoms, particularly the constitution’s First Amendment. Yet we live in a diverse world, where even countries that generally agree on freedoms have reasonable differences as to the shape and scope of those freedoms. I hope the court’s ruling continues to generate broader robust discussion.

Author: Michael Fertik is the founder of Reputation.com.

Image: People wear masks during the “Freiheit Statt Angst” (Freedom instead of Fear) protest calling for the protection of digital data privacy in Berlin, September 10, 2011.REUTERS/Thomas Peter