In 1997, the US Supreme Court in Reno v. American Civil Liberties Union described the Internet as a dramatic new marketplace of ideas, referring to it as a “vast library” of millions of publications and “the most participatory form of mass speech yet developed”. It made everyone a publisher – “[a]ny person or organization with a computer connected to the Internet can ‘publish’ information”.
It followed that, under the First Amendment, the Internet was entitled to maximum protection and the Court cautioned against imposing regulations that would unduly restrict speech (Reno v. ACLU concerned the restriction of access to sexually explicit content, which the US government argued was necessary so as not to discourage parents from allowing their children access to the web. The Supreme Court strongly disagreed, stating that “[t]he interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship”).
The estimated number of websites in 1997 was just over a million. Yahoo! and Amazon were in their infancy, but Google, YouTube, LinkedIn, Facebook, Wikipedia, Paypal and most other names that are now synonymous with the web had not yet been launched (and Alibaba, about to be launched in potentially the largest IPO seen in the tech world, was the merest glint in its founder Jack Ma’s eyes).
Fast forward to 2014. The world wide web literally crawls with information, some of which are of a private nature. The “vast library” referred to by the US Supreme Court is now of a size that is beyond human comprehension. It is estimated that there are a billion websites in the world today and more are added every day.
It is impossible for anyone to make sense of or find their way among all this information without the help of a search engine. Search engines are crucial in making the promise of the internet a reality. It means that an individual blogger or journalist who publishes through a blog has a decent chance of their information being picked up (particularly if they are writing on a subject that few others write about).
Today, the ECJ has identified the very function of the search engine as a serious threat to personal privacy and data protection. The ECJ’s decision in the Google Spain case argues that it is one thing for personal information to be out there on the internet, but that indexing all this information and presenting it in coherent form potentially infringes the right to privacy. The Court has held that “as a rule” the interests of an individual in protecting privacy will outweigh the interest of the public in receiving that information, even when lawfully published, and so the individual may ask Google (or another search engine) to remove that information from its search results.
In doing so, the ECJ has taken up a position that is almost diametrically opposed to that of the US Supreme Court. Where the US Supreme Court examined the situation from the vantage point of protecting free speech and society’s interest in the free flow of information, the European Court of Justice has come at this from the angle that personal rights to data protection and privacy are paramount. While it acknowledges that there may be a societal interest of access to information in some cases, in particular where the information concerns the role of a “data subject” in public life, it holds that as a rule, the privacy interest overrides societal interests of access to information – even lawfully and legitimately published information.
The ECJ refers only to Articles 7 and 8 of the EU Charter of Fundamental Rights – the rights to privacy and data protection. There is no mention of Article 11, the right to freedom of expression and to receive information. There is an acknowledgement of the importance of journalism, but no apparent awareness of the importance – in the internet age – of the right to freedom of expression and how that right is realised.
The implications of the judgment are massive. Google has been put on the spot but other search engines are affected too. Anyone who feels that information which is no longer ‘relevant’ to their current situation – be it an old conviction for shoplifting, the beating of a spouse, or a conviction for corruption – will be in a strong position to approach Google and request that the page listing that information is de-indexed.
The Supreme Court referred to the World Wide Web as “comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications.”
This remains unchanged – the vast library is still there. And its growing. But the indexing is under serious threat – the European Court of Justice has straightjacketed the librarian.
The real loser in this case: the public and the interest in society at large in the free flow of information and ideas.