A right to be forgotten

The people have a right to know, and the people have a right to be forgotten. That’s the essential contradiction the European Union has set up with a privacy rule the continent’s highest court put into practice five years ago— and it’s a contradiction that could travel across the Atlantic.

The “right to be forgotten” requires that search engines such as Google delist irrelevant or outdated material upon request. The motivation makes some sense: The digital age has led to the erosion of the personal sphere, the argument goes, and citizens should be able to opt out of living forever under the Internet’s collective gaze. But Europe set too broad a standard, encompassing accurate information lawfully published. Speech advocates from the start warned of negative repercussions.

It is difficult not to be alarmed: What started as a directive for search engines to make information harder to find has evolved in one country into a directive for news organizations to make information disappear. The scrubbing also threatened to creep beyond EU borders until some good news arrived this week: Google won a case in the European Court of Justice holding that search engines need not block results globally (a mandate that likely would have pleased authoritarian regimes eager to extend the reach of their own censorship).

Yet the right to be forgotten may still make its way around the world. Countries are struggling to craft privacy regimes for the digital age. This particular case sits at the intersection of the right to be forgotten and the right to erasure, which deals not with information disseminators such as search engines but directly with the sources of that information, including the companies that hold our personal data. A right to delete is already part of the California privacy law soon to go into effect. It’s another well-intentioned idea with room to go wrong. Perhaps it’s useful, then, that Europe has given legislators a model—of what not to do.