News / Europe

When Does Privacy Become Censorship?

An illustration picture shows a Google logo with two one Euro coins, taken in Munich, Jan. 15, 2013.An illustration picture shows a Google logo with two one Euro coins, taken in Munich, Jan. 15, 2013.
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An illustration picture shows a Google logo with two one Euro coins, taken in Munich, Jan. 15, 2013.
An illustration picture shows a Google logo with two one Euro coins, taken in Munich, Jan. 15, 2013.
The ruling in recent days by Europe’s highest court that individuals have the right to ask search engines to remove links with personal information is about as big – and unclear – as they come.
 
Industry analysts and executives on both sides of the Atlantic say the decision could fundamentally alter how search engines work and how people find and access information online.
 
In ruling that individuals have a “Right to be Forgotten,” the European Court of Justice posited a new fundamental right that some worry will trump others’ rights to free expression.
 
Left unanswered are the many questions about who, how and on what basis can people limit their exposure on the Internet, and when limiting personal information may slide into censorship.
 
And even more, the decision now seemingly puts the European Union and the United States at political loggerheads, threatening the foundational principles governing the Internet.
 
Balancing competing rights
 
In 1998, the Spanish newspaper La Vanguardia published two brief stories concerning Spanish citizen Costeja González.
 
González owned back taxes and as a result his house was put up for auction and sold.
 
The stories cited local public notices and their accuracy is uncontested.
 
More than a decade later, González said he was “embarrassed” that a Google search of his name resulted in links to the archived stories.
 
He petitioned to have both the stories and the links taken down.
 
Over four years the case worked its way first through the Spanish, and then through the European court systems, finally ending up at the European Court of Justice, the highest tribunal governing all member states of the European Union.
 
On May 13, the 13 judges hearing the case ruled that while the two news stories could be maintained online as long as La Vanguardia liked, Google could not show those links to any search concerning Mr. González.
 
In effect, while the articles were still out there online, Google would have to pretend its search engine didn’t see them.
 
Online privacy advocates hailed the decision.
 
“People like to be able to control information themselves,” said Marc Rotenberg, executive director of the online civil liberties group the Electronic Privacy Information Center.

“Privacy is one of those issues people care very strongly about. They do like the services that are offered such as Google. But I think they also have the sense that not enough has been done to safeguard privacy.”
 
He told VOA he considers the decision “significant” and “a good starting point.”
 
Google views the matter very differently.
 
“A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know,” Google CEO Eric Schmidt told a shareholders meeting this week. “From Google’s perspective that’s a balance. Google believes, having looked at the decision which is binding, that the balance that was struck was wrong.”
 
The so-called “Right to be Forgotten” has been debated in Europe for over a decade. But with this ruling it seems the debate may be closing and the “Right” is becoming policy.
 
One of its principal advocates is European Commission Vice President Viviane Reding, who is pushing for the right to be enshrined in newly proposed data protection laws.
 
“Today's Court Judgement [sic] is a clear victory for the protection of personal data of Europeans!” Ms. Reding posted on her Facebook page after the ruling. “Today's judgment is strong tailwind for the data protection reform that the European Commission proposed in January 2012 as it confirms the main pillars of what we have inscribed in the data protection Regulation.”

Others aren’t so sure.
 
Writing in 2012 in the Stanford Law Review, George Washington University Law Professor Jeffrey Rosen took a dismal view of the proposed “Right to be Forgotten”, warning that it would put the EU, with its emphasis on privacy, and the US, which highly prizes free expression, in conflict
 
“It could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet,” he wrote.
 
Search or censorship engines
 
“It’s sensible to say in light of this ruling that something has to give. So the question is: on which side of the ocean will that give happen?” asked University of Michigan Law Professor in Practice Len Niehoff.
 
Niehoff’s concentrations are media law and the First Amendment. He says the ruling rests on a “dangerous and deeply flawed approach.”
 
With U.S. and EU law regarding speech and privacy protections increasingly in opposition, he speculates this ruling will make itself felt for a long time to come.
 
“There’s an argument to be made that it will be experienced here with increased tensions between privacy and free expression interests, and I think it may be experienced there with greater pressure on various states to pass laws that are more accommodating of free expression,” he said.
 
Among his primary concerns, Niehoff told VOA he’s focusing on two aspects of the ruling.
 
“The first is that it finds search engines to be data controllers for purposes of European privacy law,” Niehof said. He calls this finding very significant, because search engines don’t control third-party content, but rather connects materials.
 
Just as importantly, he said the ruling leaves many questions about just how and when such link removal requests should occur unanswered.
 
“It is spectacularly vague, and it is extraordinarily difficult to apply, and it is unthinkable that it can be applied in a consistent manner,” he said.
 
In the end, Niehoff said, the ruling transforms search engines like Google or Yahoo into “censorship engines” while at the same time applying standards that are “dramatically vague.”
 
Privacy advocate Marc Rotenberg said he understands the concerns about this ruling slouching toward something like censorship, but counters that the decision actually protects free expression.
 
“You have to consider the ability of individuals to control the dissemination of information about themselves,” he said. “This is in many respects the core of freedom of expression: how we chose to express ourselves or not to say things or do things.”
 
But the ruling may have very tangible effects.
 
“This [ruling] results not only in legal tensions but political tensions now” Niehoff said. “A number of commentators are already observing that this really escalates political tensions between countries and is creating a legal morass.”
 
The Snowden effect
 
“This decision is a step backwards in terms of innovation,” said Daniel Castro, a senior analyst with the International Technology and Innovation Foundation, a think tank and lobbying group associated with Internet industry giants.
 
“And it could have very real effects in terms of slowing investment and innovation,” he said.
 
Castro worries that the inverted priorities for the EU – privacy rights – and the U.S. – free expression – will limit cooperative ventures and new innovations between the two regions.
 
“I think resolving this is going to be very difficult,” Castro said. “To what extent will the EU try to impose its view on companies operating outside of Europe?
 
“A company like Google has a presence,” he said. “But other companies are clearly outside the EU jurisdiction. They don’t have a physical presence, they don’t have personnel or even computers, but the EU will still want to impose these kinds of rules.”
 
Analysts say one reason that the court has stepped up its privacy protections is something some are calling “the Snowden effect.”
 
Bennett Kelly, founder of the Internet Law Center, told VOA that there’s always been some skepticism in Europe of U.S. electronic espionage.
 
Last year’s NSA revelations leaked by Edward Snowden put a chill on U.S. – EU relations.
 
“There's already skepticism in Europe because of that, and then you throw in Snowden, it creates more distrust. Having one more element of differentiation between the U.S. and EU is just not helpful," he said.

Questions and more questions

There are, of course, deeper issues untouched by the ruling. For example, what happens to all the offending personal information already published online that search engines won’t be allowed to list?

The answer is probably nothing.

Just as La Vanguardia can keep its articles available online for as long as it likes, the thousands of an individual's data points of semi-personal information will likely continue to exist on the Internet, assuming you can find them.

Or what if one person requests Google to stop linking to a story that mentions him, but another person wants Google to link to the very same story that mentions them?

Will convicted felons be able to petition to virtually erase links to their past misconduct? Will the wealthy who can afford robust legal teams have more luck removing personal links than those less fortunate? The answers are uncertain.

While European Court of Justice rulings cannot be appealed to any higher authority, member nations and the EU itself can also enact legislation that expands, limits or modifies the exact parameters of what personal information individuals can control, and where the public’s right to free information trumps the right to be forgotten.

Which leads, in the end, to what must be one of the most ironic twists to a legal decision in recent memory.

Although Mr. Costeja González won his suit to have Google remove its links to those two “embarrassing” stories about him, this decision – replete with personal information – ensures that nobody will be able to forget about his tax and financial troubles ever again.

Doug Bernard

dbjohnson+voanews.com

Doug Bernard covers cyber-issues for VOA, focusing on Internet privacy, security and censorship circumvention. Previously he edited VOA’s “Digital Frontiers” blog, produced the “Daily Download” webcast and hosted “Talk to America”, for which he won the International Presenter of the Year award from the Association for International Broadcasting. He began his career at Michigan Public Radio, and has contributed to "The New York Times," the "Christian Science Monitor," SPIN and NPR, among others. You can follow him @dfrontiers.

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by: James from: EU
May 19, 2014 12:53 AM
As I have understood it, this is a case of someone who had financial problems over 15 years ago, who has since paid his debts and wishes to move on with his life. Now when he applies for a new job, a new loan, date a new girl, etc., the first things that comes up about him on an internet search is that he is a deadbeat (and not that he has rectified the situation). For all of the commentors who wish to equate the EU with big brother or a totalitarian government like North Korea, is there no "statute of limitations" if you have paid for indescretions of the past? How far into the future should prospective employees see that drunk photo from your frat party? Read the grimy details of your divorce proceedings? The article talks of striking a balance, but what alternatives are Google & Co offering real people?

by: Anono Mouser
May 18, 2014 7:58 PM
Too bad; Google search results are nothing that's not already in the public domain. And Google is such a powerful tool for law enforcement that I can't imagine them crippling it. I would not be surprised if governments require Google to provide them with an un-censored version for them, while letting the public access only the censored version.

by: Freon Sandoz
May 18, 2014 7:28 PM
"You have to consider the ability of individuals to control the dissemination of information about themselves..." Well then, the problem is with the newspaper that PUBLISHED the article, not with a search engine, which is just an index of terms used in the article. By ruling that the newspaper could continue to make the article public but that Google could not allow people to find it by using the name of the person the article is about, the judges show their stupidity. All this ruling will do is encourage development of underground search engines that the judges will have absolutely no control over.

by: Buzzby from: Cleveland, OH
May 18, 2014 7:05 PM
Anyone wanting to sidestep European restrictions needs only to use a US intermediary proxy server to access a US (uncensored) search engine.

by: Sobekisis from: Denver, CO
May 18, 2014 5:29 PM
My response would have been to remove all references to anything and everything with a European address from searchability. As well as greying out the continent on Google Maps with maybe a note that "Google can neither confirm nor deny that there is a continent North of Africa." Fortunately the people who run Google are less childish.

by: Sam Hill from: usa
May 18, 2014 5:23 PM
Why does everything get so complicaated when lawyers get involved. Any public information ie info originated publicly arrests, convitions, births, deaths, and taxes paid, or unpaid should be able to be accessed by anyone. As should any true statements about a person or made by the person. Using a search engine is no different than hiring a private detective, just alot more convenient, cheaper and quicker. Same rules as they and news reporters/photogs, cops and governments supposedly are to comply. If you don't want your crap on the street use a private toilet and flush multiple times.

by: Jason from: Houston, Texas, US
May 18, 2014 4:47 PM
Censorship engine, indeed. This opens the door to the end of the Information Age. Why should Google be forced to de-link truthful information? Can Kim Jong-Un now request that embarassing information about himself or the DPRK be removed? How about Haliburton? Barack Obama? George W. Bush? Wal-Mart?
The Pirate Bay has skates by for years on the declaration that they store no content, are "just a search engine", etc., does that no longer apply?
I am always leery at any government that would seek to impose control over information. 1984, indeed.

by: Strathmore from: Texas
May 18, 2014 3:32 PM
Posting every bit of my voting info down to the date I voted, my political affiliation, my birthday, MY ADDRESS, my voter ID number? That's not freedom of speech. I should not be able to look up a receipt for a necklace I bought an old girlfriend ten years ago, every address, or every phone number, family member, or income. Something seriously needs to be done about the lack of privacy. It's just a huge catastrophe waiting to happen. How many lives have to be ruined/invaded?

by: Negrodamus from: USA
May 18, 2014 3:09 PM
This is a great judgement.
People have to the basic human right to privacy.. Others do not need to know about other humans and what they may have done.

Knowledge is not only power but a weapon of mass destruction.

Privacy must triumph, Death to all who oppose us!

by: Scott Bartell from: Irvine, CA
May 18, 2014 3:00 PM
It's hard for me to accept the premise that you can't always print or speak the truth in Europe, but I suppose it's not any different than China and other countries that maintain lists of forbidden search terms. It should be relatively simple for Google to add names to an EU blacklist upon request from those individuals, so that when someone searches on one of those names within the EU they just get a message indicating that all links to that person have been removed.
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