In a case that could have EU-wide implications a Spanish court is asking Google to remove data about a private individual from its index. This is known in Spain and elsewhere in Europe as “the right to be forgotten.”
The immediate case at hand involves a Spanish plastic surgeon who was featured in a critical profile by newspaper El Pais in 1991. The underlying dispute between the surgeon and his patient was resolved and it’s not clear from an article in the Wall Street Journal how meritorious the claims were or precisely how the dispute was resolved. The doctor is still practicing, and therein lies the problem.
When users do a search on “Dr. Guidotti Russo” the critical article comes up on page one of Google, with potential economic consequences for the plastic surgeon. Accordingly he wants to get that article removed from the Google index and the Spanish court and Spanish Data Protection Authority are backing him.
Google is fighting and arguing that Spanish privacy regulators have exceeded their authority and that the move amounts to censorship. The crazy thing is that the newspaper itself isn’t being asked to take down the article — just Google.
The dispute raises the question of how much control individuals should have over what appears about them online (mostly in Google it would appear). As the WSJ points out there’s a “right to be forgotten” movement in Europe that may be codified:
A movement has cropped in parts of Europe to create a “right to be forgotten,” which would let individuals excise personal information from the Web on privacy grounds. The European Commission, as part of its data-protection overhaul, has proposed recognizing such a right. France’s Senate has also approved similar proposals, which have yet to be ratified by the National Assembly.
The Spanish Data Protection Authority has ruled that freedom-of-expression rules in Spain, which cover newspapers and other publishers, don’t apply to search engines. However in earlier decisions the privacy regulator has labeled Google a “publisher” and held that libel laws that apply to newspapers equally apply to Google. These two positions would appear to directly contradict one another.
The “right to be forgotten” rules may become law in the next two years as the EU’s privacy policies get overhauled. It appears that most EU regulators are sympathetic to the “right to be forgotten” concept. How it would be implemented and what the duties and burdens imposed on online publishers and search engines would be is somewhat unclear. That’s where it would get messy.
If the plastic surgeon was wrongly accused and the article has compromised his ability to make a living, one can understand the frustration and desire to get the article out of Google’s index. But there are other ways to address what is essentially an SEO and PR problem.
The EU should tread carefully so as not to create a bureaucratic nightmare where individuals and, by extension, companies could exercise censorship control over what appears about them online and in search results. On balance the “right to know” (especially where entities and public figures are involved) should trump the novel “right to be forgotten.”