American Web users’ access to Internet content may soon be limited, thanks to a recent decision by French regulators. France’s National Commission on Informatics and Liberties (known by its French acronym CNIL) ordered Google to apply the European Union’s bizarre “right-to-be-forgotten” rules on a global basis in a June ruling. The search engine announced at the end of July that it would refuse to comply. If it is nevertheless forced to do so, the result could be unprecedented censorship of Internet content, as well as a dangerous expansion of foreign Web restrictions on Americans.
The European Union’s “right-to-be-forgotten” rules were first imposed in May of last year in a case decided by the European Court of Justice. The plaintiff, a Spanish citizen named Mario Costeja González, had his house repossessed in 1998 due to a tax debt. A notice of the sale was duly printed in a local paper. A decade later, concerned that the newspaper notice still appeared in search results when his name was Googled, he sued the search engine under the EU privacy law, to force it to filter the story from future search results.
Last November, an EU “working party” issued further guidelines on the matter, listing 13 factors to consider in deciding whether a link must be removed, including whether the information at issue is accurate, whether the subject is a public figure, whether a criminal offense was involved, and whether the information is a matter of opinion or fact. None of these factors are determinative, however, and decisions are to be taken on a case-by-case basis.
The decision triggered a minor tsunami of requests to forget the past. Google, which accounts for 90 percent of European searches, reported last month that it had received over a quarter million requests to delist over a million URLs. Of these, over 580,000 URLs were delisted, meaning they no longer appear in response to certain searches, effectively hiding them from the public.
A Violation of Free Expression
But the mandate to “forget” is not so harmless. On a fundamental level, it violates basic principles of free expression and press freedom. The best cure for bad speech is more speech, not, as Louis Brandeis wrote, “enforced silence.” This is more than an abstract principle. In only a year, the rule has produced a disturbing record of censorship. The following are among the news reports that have been “forgotten”:
- A 2009 Daily Mail story about employees of the grocery store Tesco posting insulting comments online about their customers.
- A 2003 BBC report on a British woman convicted of running a prostitution ring, quoting a former employee of the operation.
- A 1998 BBC story about violent German soccer fans, quoting one as saying “I like violence.”
Each of these stories has been blocked from appearing on Google.co.uk and other EU country-specific sites in response to searches of the name of an individual in the story. There is no complete, public list of the delisted stories. Noting that public notices of which news reports have been delisted could increase public awareness of supposedly “forgotten” facts, EU regulators have decreed that search engines should generally not inform media outlets when their content has been delisted. In other words, information about the censorship of information is itself censored. Fortunately for the public, several news outlets, including the Mail and the BBC, have taken it on themselves to identify and publish links that they have discovered have been targeted for official forgetfulness.
It gets worse: The concept of a “right to be forgotten” is now spreading to other countries. Russia has just enacted its own such law, no doubt seeing its potential as a tool for political censorship. The Russian law is openly modeled on the European example. “We haven’t invented a bicycle here,” said one Russian lawmaker. “It already exists in the European Union.”
America may be the next stop for the right to be forgotten. On July 7, a group called Consumer Watchdog petitioned the Federal Trade Commission to impose right-to-be-forgotten rules under its existing authority regarding unfair and deceptive practices. A more immediate danger, however, comes from France, via CNIL’s decision to expand enforcement of Europe’s rules.
An Affront to U.S. Sovereignty
Moreover, French authorities have indicated that they want filtering to extend beyond France. “If people have the right to be delisted from search results,” says Isabelle Falque-Pierrotin, head of CNIL, “then that should happen worldwide.” In an exchange with SearchEngineland, an industry blog, French regulators said that they want results filtered not just for France, but for all French citizens living abroad.
That’s a tall order, implying that CNIL wants to force search engines to filter all results across the globe, meaning that no Web surfer anywhere would be able to see links to the “forgotten” information. This result would mean that Americans using a U.S. search engine on their computers in America would have their search results censored by French bureaucrats.
Full article: Europe’s Latest Export to America: Internet Censorship (The Heritage Foundation)