Japan Does the Right Thing on the Right to be Forgotten

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This week, Japan’s highest court dismissed a man’s demand that internet search results of his arrest in a child prostitution case be removed under the right to be forgotten.

The court concluded that search results are speech. As one report put it:

The court said Google search results, though generated by machine, are a form of speech, and restricting the results could be seen as a restriction on speech. It said requests for removing results should be considered on a case-by-case basis, weighing the significance of the information and the merits of having it available to the public versus the reputational damage suffered by the plaintiff.

Since speech is involved in search results, requests for deletion face a high burden.   Deletion “can be allowed only when the value of privacy protection significantly outweighs that of information disclosure.”  As Google noted, this phrasing sets up a balancing test in which “any decision to delete information from search results should prioritize the public’s right to information.” 

These are difficult and complex questions that involve careful balancing of rights and interests. In this case, the court ruled that search results should not be deleted because the arrest on child prostitution charges is “subject to society’s strong disapproval and is a matter in the public’s interest.”

The court did not provide plaintiffs with an unambiguous right to be forgotten such as exists in Europe. It did, however, allow people to bring cases seeking to require search engines to delete search results.  The good news for free speech is that plaintiffs need to show substantial harm in order to overcome the presumption in favor of providing search results. 

Mark 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.