Some 16 years ago, Costeja Mario Gonzalez, a Spaniard who lost his home due to debt owed to the government, had his name printed in the newspaper La Vanguardia, as part of an ad detailing an auction of his home.1
A decade later, La Vanguardia digitized its print and made it available on the internet. It was then, that Mr. Gonzalez discovered that his photo, name and details of the seizure and auction of his home was available on the internet. He filed a complaint to have Google remove search results that linked him to his past actions, with the Spanish data privacy authorities (AEPD). The case eventually made its way up to the EU's highest court.
Prior to issuing its ruling today, the EU's Advocate General for the top court advised that the justices should not require Google to remove search links to his information, as it would, "entail interference in the freedom of expression of the editor of the website" and was, "tantamount to censorship of content published by a particular."2
While the top court generally accepts the interpretation of the Advocate General, this time it contradicted the AG, and in fact jumped the gun and created its own law. The AG had correctly established that EU law did not observe the "right to be forgotten", a concept that has been discussed for a few years in Europe. In fact, it was part of a proposal within the 2014 EU Data Protection Directive, but was yet to be officially passed and incorporated into EU law.3, 4
The court chose to make bad law, in my opinion, once it stated that a search engine was "obliged to remove links to web pages that are published by third parties...even, as the case may be, when its publication in itself on those pages is lawful."5
The court suggested that, by appearing in a search engine's results, Google had made Mr. Gonzalez's information much easier to access. Well sure, but what is the internet if not a bunch of linkages between each other? If the direct link is erased, it does not remove the indirect link to the legally-appearing information. Furthermore, anyone performing due diligence on an individual would not simply rest on one's laurels after completing a simple name search. If provided enough incentive, I can find most anyone, and Google search is just the first step of many other steps to find information. The court reeks of superficiality of knowledge.
Mind you, Mr. Gonzalez has no problem with being famous at all; he just wanted to be able to control how the world saw him. Irony notwithstanding that his public lawsuit placed his name and his past debts into the spotlight, exceedingly more so than Google's single, obscure link to an ad in La Vanguardia. In related news, Hitler called and requested that all past information written about him in a negative light, be removed from Google's search results.
The court, realizing that perhaps public officials might want to do exactly this -- curate their public image to suit their needs -- suggested in a obtusely generalized way, that privacy must be balanced against "the interest of the public in having that information".ibid
However, the court seemingly forgot that before politicians and judges become public figures, they too were once private individuals. If search engines are made to eliminate past references of transgressions, then all politicians in the future will have completely sanitized histories in the image of model citizens.
And finally, there is the question of moral hazard. If one's actions are inconsequential, what's to stop people from repeating the same errors over and over? It leaves a bad taste in the mouth, to think that one can walk into a church and absolve himself from sins, then go out that same night to commit more. Like it or not, social pressure from public embarrassment has long been a critical part of lawful conformity.
Really, the EU should call it for what it is: The Right to Selective Memory.
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