|May 21, 2014|
Previously published on May 15, 2014
The European Union's highest court has issued a landmark ruling: henceforth, individuals may influence what information search engines display about them. Before Tuesday's ruling, search engines such as Yahoo®, Google®, or Microsoft's Bing® had free reign over the results they offered users. If a result was distasteful to its subject - an arrest record or a statement of unpaid debt - the search engine could display it, even over that person's objection.
Now, says the European Court of Justice, individuals may demand that search engines not display these results after a certain amount of time has passed. Except where special concerns dictate otherwise, said the Court, an individual's interest in having old webpages "forgotten" trumps a search engine's - or the public's - interest in having those old webpages displayed in search results.
While a clear victory for privacy advocates, commentators have warned that the Court's new rule may be difficult to administer in practice. The ruling leaves unanswered from which websites - European only, or global - search engines must remove results, and leaves undefined what efforts search engines must make in deciding which individual requests to honor. Commentators have also warned about the social effects of the ruling: an increased burden on search engines and reduced access to information. Even if Google®, with its 90 percent European market share, remains just as viable after the ruling, one individual's gain - removal of a link to his or her past - will still be a search engine user's loss.
Less discussed is how the goals dueling in the Court's decision - an interest in the free flow of information on the one hand, and the "right to be forgotten" on the other - may balance on this side of the Atlantic. In the United States, the "right to be forgotten" plays a minor jurisprudential role. So much so, in fact, that it is difficult to envision a similar case winding its way to the top of the U.S. court system, let alone setting the same headline-grabbing rule that the European Court of Justice has adopted. More interesting for observers in the area is whether U.S. regulators will take a proactive position to resolve the transparency-privacy tension in the world of online search results. Whether the European Court's ruling would be valid under the First Amendment protections of U.S. law remains to be seen. Moreover, U.S. regulators have yet to weigh in on the degree to which an individual's privacy interests should ever override the policy of transparency that - at least until this week's ruling - had defined the internet in both the U.S. and in Europe.