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Google Advisory Group: Limit 'Right to Be Forgotten' to the EU

By Mark Wilson, Esq. on February 09, 2015 | Last updated on March 21, 2019

Last year, the European Court of Justice made some waves (radio waves, that is! Get it? Because it's the Internet) when it announced there was a "right to be forgotten" that should allow people to petition Google to have Web pages removed from search results.

Nice idea, but anyone who knows anything quickly pointed out that would be a logistical nightmare, and besides, Google shouldn't be responsible for policing what's basically a descriptivist index of what's on the Internet already.

Leave That Stuff in Europe

Mashable reports that an advisory group, sponsored by Google, recommended (among other things) that the "right to be forgotten" be limited just to the European Union. Conveniently enough, our friend and Technologist columnist Eric Sinrod just recently pondered whether the U.S. couldn't use some that forgetting, too.

The report suggests, probably rightly so, that the same legal framework couldn't be imported into U.S. law because of the First Amendment. Much of the Google advisory group's report will be familiar to those who've studied reputational torts like slander or publication of private (true) facts.

The report does a lot of the same weighing of public v. private benefits, and whether a person is a public figure or not, when laying out criteria for when a Web page should be delisted. Those are all First Amendment concerns; sure, there's a right to a person's privacy, but there's also a right to publish information about public figures.

Your Analogies Have No Power Here

Should we in the United States make a special exception for the Internet? It's tempting to draw an analogy to "meatspace," but there really is none that would be meaningful. The ease with which we can access information over the Internet means that the cost to access any given piece of information is essentially zero.

It's not enough to say, "Well, a person's arrest records are public information, so why shouldn't they be online?" Back in Ye Olde Times, if you wanted a list of every person who was convicted of a crime in, say, Cuyahoga County, Ohio, last week, you'd have to travel there and go through every record by hand. That cost real time and real money. Now, though, you can click your way to as much information as your little heart desires from the comfort of your bathtub.

That argument cuts both ways, though. Browsing the Internet isn't like browsing the library. Unless you already know a website's URL, or have a list of other sites that a particular site is linked to, there's no possible way you could find something without a search engine. There are just too many websites -- 644 million, by one estimate. Again, scale makes analog metaphors impossible. Essentially, then, de-listing a site from Google is the functional equivalent of removing it from the Internet. (This leads to a modern-day Zen riddle: If a website can't be found through Google, does it make a sound?)

A law ordering Google to remove a page from its search index is the digital equivalent of a "speech zone" that's 2 miles from the actual event being protested. (I'm aware that this is an analog metaphor.) The speaker technically still has the right to speak, but the effectiveness of the speech is neutered completely. There's no constitutional right to an audience, but there does have to be a way for the message to come through.

You Won't Find Answers

Eric Sinrod's column ended in a kind of "I don't know what we'll do, let's wait and see." I was hoping to write more of a definitive ending, but the truth is, I'm also stuck. It probably isn't fair for a professional adult to have her mug shots from her time as a 13-year-old punk kid posted all over the Internet. There's definitely a line where certain things aren't relevant anymore, and holding on to old, inculpatory records does more harm than good. We just have to find that line.

As The Atlantic pointed out last year, the EU ruling was grounded in a French law allowing a criminal who's served his time to have the record of his conviction erased. Jean Valjean served his time and became an upstanding citizen, but Inspector Javert came after him anyway. Perhaps Javert was just the 19th-century version of an Internet troll.

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