The right to be forgotten

A recent European Court of Justice (ECJ) decision has raised a question which is becoming increasingly relevant in today’s digital world pertaining to “the right to be forgotten” – does such a right exist?

Take David G. (pseudonym), your average American oleh living in Jerusalem. Sometime in the 90’s, as a senior in high school, David and a group of friends were arrested by the local cops for smoking pot and general rowdiness. Being a small town where any news is worth reporting, the local tabloid ran a story on its website listing the names of the “delinquents” who had been arrested for “drug abuse” and “disturbing the peace”.

Now, almost two decades later, David is looking for a job. He has since obtained degrees in engineering from MIT and Cooper Union and is a proud father of three. However, search engines’ algorithms are such that when potential employers begin typing in David’s name, the suggested key words are “David G. drug abuse”.

This brings us back to the original question of: do we have the right to be forgotten? Should Google, or other search engines, be required to hide or remove certain outdated or inaccurate information?

This was the question put to the ECJ, the highest court in the European Union. A Mr. Costeja Gonzalez of Spain asked Google not to display links to a newspaper article from the late 90’s. Surprisingly, the ECJ ruled in Gonzalez’s favor, requiring Google to comply with his request.

The impact of this decision, which cannot be appealed, is tremendous. For one, this poses a grave threat to free speech online – remember, this is a European court ruling – such a decision would never pass in a United States court where free speech retains an almost godly post in American jurisprudence.

In Israel, freedom of speech doesn’t enjoy the same superior status as it does in the United States’ First Amendment, or even to the extent that it is protected under Art. 11 of the EU Charter. In Israeli jurisprudence there is no specific legislation providing for the freedom of expression, rather it is derived from the right to human dignity, entrenched in Israel’s 1992 Basic Law: Human Dignity and Liberty. However, any question raised as to the right to speak and express oneself freely is generally weighed against the individual right to a “good name”, also derived from Human Dignity. In a 1991 case, Rinat v. Rom, Israel’s Supreme Court ruled that the correct balance between the two aforementioned rights would be to side with the one that most profoundly guaranteed the right to human dignity. How than would our Supreme Court rule if an Israeli Costeja Gonzalez were to surface with a similar request? Which right would trump – the right to free speech, or the right to bear a “good name”? What of the right to privacy – explicitly entrenched in Art. 7(A) of the Basic Law?

The results could be even more alarming. If Google, or another major search engine, is charged with determining which information to make available and which to hide, a window opens for bribery and corruption -what is the [monetary] price for rewriting or deleting history?

In any event, the likelihood is that even in Europe, not much will actually change. First of all, the ECJ judges didn’t’ tell the newspaper to remove the article; it merely required of Google not to make the link available through its search engine. Furthermore, the court didn’t require Google to stop linking all information; rather, only to data that is “inadequate, irrelevant…or excessive”, where there is “no strong public interest” in having access to the information in question. In the worst case scenario, where Google is forced to un-link major content on its European servers, anybody with mild tech know-how would be able to obtain desired information through American-like searches – thus, while things may appear to have changed in Europe, in reality, everything stays the same.