Internet Governance, Privacy, and the Right to Be Forgotten

[Commentary] In May, the European Court of Justice (ECJ) generated controversy with its ruling on privacy. The case involved a Spanish man’s grievance with Google over a search result for his name that linked to information outlining a 15-year-old bankruptcy proceeding. The ECJ ruled that Google, and other search engines, should be required to remove the information that is deemed “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed”.

The ECJ held search engines responsible for the results delivered to its users. This ruling suggests that search engines can affect the reputation of an individual person, as opposed to functioning as a tool that enables users to access information across the Internet.

The ECJ acknowledges that this ruling will not deter potentially damaging information from being discoverable since the information will still exist on the Internet even if a search engine can’t link directly to the result. Would this type of ruling ever occur in the United States? It’s difficult to imagine a ruling like this to come from an American court, for the following reasons:

• One: Given the First Amendment, it would be difficult to justify limits on publication of digital material.
• Two: The United States and Europe have fundamentally different approaches to protecting privacy. In his recent paper Cameron Kerry describes the political and legal differences between the EU and the US.