Those who study free speech are well aware that in the clash of privacy and free speech interests, the U.S. as a general part of free speech idolatry of free speech routinely permits the public disclosure of embarrassing details of a person’s private life. Thus the sex lives of public persons are open season along with the details of their health and finances. Those newspapers publishing the names of rape victims have been constitutionally protected. Although the Court has left open the possibility that it might not be permissible in some circumstance to publish the names of such victims, newspaper editors can breathe easy. Conservatives and liberals both engage in free speech worship when privacy rights are at stake.
Europe, on the other hand, is far more sensitive to the dignity of human beings even famous human beings, and their right to privacy. So, for example, when a British paper published a photograph showing Naomi Campbell emerging from a meeting of Narcotics Anonymous, the House of Lords found that the paper had impermissibly invaded her privacy. The press was free to report that she had a cocaine problem (only because she had said she was not like other models who took drugs), but the report of her involvement in Narcotics Anonymous was beyond the pale. The Campbell case is not an aberration in Europe. It is typical, and the privacy right has even deeper roots in France and Germany than it does in England.
My strong view is that the European approach is superior to the U.S. which elevates the interests of a voyeuristic culture over human dignity. But I must say that the relatively recent development of the “right to be forgotten” strikes me as stepping over the edge. The right began with the notion that a person who puts up a photograph on Facebook and regrets it should have a right to have it removed from his own page and to the pages of others who shared it. The latter is more controversial than the former, but the right has gone much further.
In a recent case the European Court of Justice ruled that a plaintiff had a right to compel Google Spain to remove from the list of links found in a search for the plaintiff’s name a link to an online newspaper story referring to an auction selling materials of the plaintiff because of his failure to pay debts some 16 years ago. The problem for me is not the result, but the sweeping character of the right in which the result is embedded, at least without appropriate procedural protections. Essentially persons have a right to removal of a link if it is false, or not up to date, or if the privacy concern is not outweighed by Google’s economic interest and the public interest in having it on the list. The vagueness of the general right is palpable.
I think, however, that this concern could be mitigated by providing for a hearing officer to adjudicate complaints when Google does not remove links that unnecessarily invade privacy. Google searches provide revealing glimpses into an individual’s private life. Europe rightly supposes that there should be protection for the privacy rights of individuals. Free speech cheerleaders may scoff at this. But Google is not a newspaper; it assembles data. Google should not have unqualified power to determine what it will or will not remove. But Google should not have to guess at its peril what counts as privacy in a balance. A reasonable procedure should be in place to afford an aggrieved a remedy when Google is intransigent, but Google should be able to rely on that procedure as dispositive.