Right To Be Forgotten: A Win for Censorship?

The recent European Court of Justice (EJC) ruling took on a novel facet of an ageless question–to what extent are we able to ‘move beyond’ past history, or will prior actions, statements, or political beliefs continual to weigh us down?

The Court ruled that people have the right to control their online image. That is, people can force global search engines like Google to remove links to unsavory images or articles that are no longer relevant to the present; that these people have a “right to be forgotten.”

The idea that individuals have the right to control the flow of online information flies in the face of the tradition of massive non-regulation that has developed into a hallmark of the World Wide Web: an open forum of free expression. On the other hand, is it really fair that the first thing a potential employer sees when conducting a Google search is a 20 year old article for underage drinking with no relevant bearing on the job candidate today?

The EJC ruling makes a clear statement that not only are there bounds to what can be posted on the internet, but there are also restrictions for what can be found on the internet. In essence, rather than the internet being a universally public commodity, the internet is transformed into another item subject to the control of sovereign states. This is not a novel concept; for example, the United States applies content restrictions to libelous information shared or posted online.

However, the nature of the internet makes it extraordinarily difficult to remove posted information, and even if there are avenues for legal recourse within a jurisdiction, this does not ensure that this information will be removed from the public web. Moreover, even if the jurisdiction agrees to remove the information, the plaintiff cannot ensure that this troublesome information will not be publicly available in places beyond that specific jurisdiction. A look at Google’s current requirements for search removal reinforces this extremely limited nature: only sensitive personal information and inappropriate images are subject to removal.

Moreover, the content control presently in place is highly permeable–for example, one is safe from U.S. libel law if one simply stays in the realm of opinion–outside of verifiable facts (capable being proven true or false). As a result, one can easily have an overwhelming amount of negative opinions and publicity in response to a Google search, even with current safeguards.

The EJC ruling effectively changes the prior structure of the sovereign governments’ hands-off approach. By heavily increasing the realm of justifiable censorship, the decision, if implemented, shifts sovereign internet control from the fringes into the mainstream. This decision has already resulted in a “flood” of requested redactions from Google’s search engine. Moreover, according to Reuters, “The criteria for determining which take-down requests are legitimate is not completely clear from the decision.”

Under this light comes Russia’s censorship law. At the end of April 2014, Russian parliament passed an internet law that strictly tightens government oversight over bloggers and  social networking sites that are intended to “control extremism.” In particular, this law requires popular bloggers to reveal their identities to the government, thus removing the veil of anonymity granted to many internet activists.

Opponents claim that the increased governmental oversight smacks of the oft-criticized media censorship so prevalent in China. However, ironically enough, the EJC decision actually lends support to the Russian move towards greater censorship. While many in Western world would not approve of Russian behavior that it sees as infringing upon the freedom of speech and promotion of democracy, the European decision to prioritize sovereign government protections and the resultant “right to be forgotten” over the right of uncensored free speech of the international web users may in fact serve as fodder to strengthen Russian behavior. If the free flow of web information is in fact rightfully subject to the sovereign restrictions of governments, then Russia’s new stream of laws, while distasteful, may be within their sovereign right.

Note: Any opinions expressed above are subject to change following convincing arguments, at which point I will certainly like to invoke my right for this to be forgotten!

Note: No information in this post is intended nor should be interpreted to convey legal advice of any sort.

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About Brian Mund

UPenn '13; YLS '18. My research focuses on sovereignty, the United Nations and the legitimacy of secession.
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