Page 133 - Privacy in a Cyber Age Policy and Practice

THE RIGHT TO BE FORGOTTEN 121

broader “right to be forgotten,” interpreted as the individual right to ask
“search engines to remove links with personal information about them”
that is “inaccurate, inadequate, irrelevant, or excessive”—but only under
“certain conditions.” The court stated this right was “not absolute,” but
rather “to be balanced against other fundamental rights, such as the free-
dom of expression and of the media” based on a “case-by-case assessment.”
At this point, it is too early to say what effect the EU’s “right to be for-
gotten” will have on the balance among privacy, free speech, and security.
While the decision clearly affirms that a person may remove material that
he or she posted directly, it remains to be seen to what extent the right will
apply to material the person posted that then has been copied by others,
or to material that was created by others but relates to the person, who
finds it offensive. Given the vagueness and subjectivity of terms such as
“inadequate, irrelevant, or excessive,” it is plausible that the third type of
information applies as well, with negative implications for free speech and
even public safety. For example, a Croatian pianist requested in October
2014, in line with the EU law, that The Washington Post remove a negative
review of one of his performances, which “has marred the first page of his
Google results for years.” 22
It is also important to note that the first line of decision for balancing
privacy and other values in such cases is not the EU court system, but
Google, a company that lobbies for free speech and limited regulation in
the United States, and which, as with copyright infringement, has accepted
the role of censor only reluctantly. The EU mandate poses a “real, if man-
ageable” burden for Google, which received more than half a million take-
down requests in the first half-year following the decision, and complied
23
with about half. Thus, Google accepted a request “to remove five-year-old
stories about exoneration in a child porn case,” but refused a “request from
a public official to remove a news article about child pornography accu-
sations,” as well as “to remove a 2013 link to a report of an acquittal in
a criminal case, on the ground [sic] that it was very recent.” As long as
Google takes such a conservative approach to takedown requests, one may
expect the right to be forgotten to pose relatively little danger to public
safety or free speech—however, as Jeffrey Toobin points out, the prolifera-
tion of such laws may lead search companies “to tailor their search results
in order to offend the fewest countries” as the costs of compliance (or risks
of noncompliance) increase the burden on them.
As for the risk to public safety, under its current practice, Google has
asserted that it will “also weigh whether or not there’s a public inter-
est in the information remaining in our search results—for example,
if it relates to financial scams, professional malpractice, criminal con-
victions or your public conduct as a government official (elected or