According to media reports, Google is resisting the global application of the European Union’s right to be forgotten. It is entirely right. And it is important to understand why this is a matter of urgent principle for all organizations and individuals whose lives are improved by a vibrant open Internet.
Let’s start with the famous quotation: “In cyberspace, the First Amendment is a local ordinance.” This is normally attributed to Internet libertarian hero John Perry Barlow, the former lyricist for the Grateful Dead, who penned the famous Declaration of the Independence of Cyberspace. In line with his general view that governments should keep their hands off the Internet, he might have meant by this phrase that local territorially-based governments should not censor the Internet, that cyberspace has its own rules governing expression and that these rules resemble the First Amendment’s grant of the greatest possible leeway on expressive activity.
Regardless of what he meant, however, the phrase has taken on a very different meaning. Now it is taken to encapsulate the idea that the U.S. system of free expression is only one of many speech regimes seeking authority over expressive conduct on the global Internet. The U.S. system has no more validity in cyberspace than any of the other competing ways of regulating speech. These alternative regimes range from China’s vision of an Internet sovereignty that tightly contains the range of expression to less onerous but still constraining regimes in countries like Turkey and Vietnam to open Western democracies like France and Great Britain, which generally protect expression but have stronger laws on defamation and hate speech than the U.S. does.
I think and many others do as well that the U.S. system will allow for the full utilization of the enormous expressive and associational capabilities of the Internet. But the reality is that the rest of the world sees things very differently, and it is only through patient persuasion and the proven success of our system that we will convince the world of the value of our approach. In the meantime, we have to live with each other in a globalized world.
One way these different regimes have learned to cope with the realities of a global Internet is to take advantage of the technical capacities of geo-blocking to allow companies to restrict content in one jurisdiction in accordance with local laws but to allow its free expression in other areas where the same content is unrestricted.
A model for this kind of territorial segmentation is the way payment card companies deal with Internet gambling laws, which differ by jurisdiction. Great Britain and the Cayman Islands, for instance, allow and regulate Internet gambling. In the United States, however, it is illegal, and under a 2005 law, payment card companies have a duty to have policies and procedures in place reasonably designed to prevent their systems from being used to conduct illegal Internet gambling. The card companies have worked out a system of coding and blocking that allows U.S. banks to block Internet gambling transactions, while allowing foreign banks, in jurisdictions where Internet gambling is legal, to process such transactions without constraint.
This live and let live accommodation to the realities of conflicting rules governing Internet activity is the best that can be done, short of harmonizing the conflicting laws themselves. It is what Google does, for example, when Turkey or Vietnam asks for certain content to be removed from its YouTube operation. The material remains available to the rest of the world but it is not accessible to people in Turkey or Vietnam.
Which brings us to the right to be forgotten.
The European Court of Justice found that a right to be forgotten was part of the EU Data protection directive and instructed search engines not to return search results for a person’s name when the information involved is inadequate, out of date or irrelevant. Since that time, Google has received and processed over 600,000 complaints. When it found the complaint warranted, it has not returned search results for its Google.eu operation. It has not suppressed the results for other domains, such as Google.com
This seemed right and in accordance with the model of jurisdictional comity described above. But critics maintain that this undermines the effectiveness of the right to be forgotten. If someone can access the suppressed information just by changing from Google.eu to Google.com, then the privacy protections of the right to be forgotten are porous and easily evaded.
The Commission Nationale de l’Informatique et des Libertés (CNIL), the French privacy authority, ordered Google to suppress search results worldwide as a way to comply the right to be forgotten. This is simply CNIL’s interpretation of the meaning of the European Court of Justice’s decision. Google has rejected that interpretation of the court’s decision. The matter will likely be resolved through further action by European courts.
This is a fundamental matter and it is important to get the answer right. The need to fully protect one’s citizens is a strong urge and to control expression that might be harmful is also legitimate. Some content indeed should be suppressed worldwide – child pornography, terrorist propaganda and plotting, fraudulent activity, and malicious code, for instance. About these matters, there is substantial consensus.
The right to be forgotten falls outside this zone of consensus. So far only Russia has joined the European Union in establishing a right to be forgotten. So far, at least, the right to be forgotten is a local ordinance. The right to be forgotten should be subject to the jurisdictional comity arrangement that countries and organizations use to deal with conflicts of law on the Internet. Europe should avoid the attempt to force the rest of the world to accept its balance of the right to privacy and the right to free speech, acknowledging the legitimacy of alternative ways of balancing these conflicting values.
We campaign for Internet freedom throughout the world; we urge other countries whenever we can to allow their citizens the greatest possible liberty to use the Internet to speak their mind and to organize themselves for political, economic and social activity. Europe should follow the same path of “soft power” persuasion in the case of the right to be forgotten. It should avoid the temptation to use the power of local courts to enforce a local ordinance on a worldwide basis.
Mark MacCarthy, Senior Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology. Follow Mark on Twitter at @Mark_MacCarthy.