For anyone who has regretted a Facebook post, or vehemently wished to take back personal information relinquished to the internet, Europe’s González decision may offer hope. Petitioner González sued Google for promulgating links to sites containing information about financial troubles he suffered approximately twenty years ago, perennially visible via Google name searches. González argued that the links no longer accurately represented him, and so should not continue to dominate his named search results. As González articulated, in many European countries, a “right to be forgotten” or RTBF, has coalesced in response to search engines like Google, and their ability to enshrine personal data on the internet. The right to be forgotten has gained traction in several nations, spurred by lawsuits demanding old, outdated, or non-relevant damaging information be taken offline.
These claims culminated with the González case, a 2014 landmark decision by the European Court of Justice, ordering Google to respond to user petitions to take down search results linking individual’s names to articles or sites containing damaging information.
It recognized that when we enter someone’s name as a search query, scattered moments of their life are presented mechanistically, with a significance distorted by lack of context, building a detailed but selective profile. So what are the rights of the individuals to whom those profiles relate? And what are the rights of those seeking information?
The ruling leaves intact Google’s discretion whether or not to remove contested links.
Since González was handed down, more than 250,000 requests for removal of links have been submitted to Google throughout Europe. On its new transparency page, Google assures users it analyzes each request for link removal, balancing the right to be forgotten with a public right to information.
The González ruling was extended, however in June, 2015 by the French Court (Commission Nationale de l’Informatique et des Libertes (CNIL). CNIL and other French privacy organizations chided Google for removing RTBF links from European domains only, such as France’s google.fr. CNIL ascertained that complying with González meant Google must remove RTBF links not only from their European domains, such as France’s google.fr and Britain’s google.uk, but from Google domains around the world, including American Google.com. To do less than that, CNIL found, would render the González ruling meaningless; users could simply use domains such as Google.com to access content removed from European domains.
In response, Google refuses to extend its link removal beyond European domains, acting consistently, it says, with the jurisdiction of European courts. Removing links from domains worldwide would extend González, and European privacy law, to all nations around the world. Google has ignored CNIL’s June ruling, and CNIL President Isabelle Falque-Pierrotin’s support of the order: “this decision does not show any willingness . . . to apply French law extraterritorially.”
There exists no further avenue for appeal at this time for Google. If Google refuses to comply, substantial fees will be imposed, the first of potential sanctions for the search engine.
Although the “right to be forgotten” emerged from established European privacy law, American privacy law doesn’t seem conducive to similar RTBF support. Active First Amendment jurisprudence and the public right to information in the US may chill similar suits against Google or other search engines. This can be traced largely to the third party doctrine, and Google’s successful characterization of its search engine as a public area.
The third party doctrine likely forecloses a similar holding against Google in the US. Individuals wishing to remove damaging information about themselves must defeat the presumption that information disclosed to third parties is no longer subject to a reasonable expectation of privacy. Indeed, the González test mandating Google remove “inadequate, irrelevant or no longer relevant or excessive” is difficult to reconcile with Americans’ reasonable expectations of privacy. Recently, however Supreme Court Justice Sonya Sotomayor, in her 2012 US v. Jones concurrence, questioned the continuing use of the third party doctrine in America’s digital, technology-driven society. A reboot in “reasonable expectations of privacy” for the age of the internet could create room in American Jurisprudence for a comparable “right to be forgotten.”
Furthermore, Google has continuously marketed its search engine as a “public space”, executive Eric Schmidt comparing it to a card catalogue. This characterization may represent Google’s activities in an overly neutral way. Casting Google as a space of open, accessible information “implies objectivity … and public record,” and equates removing links with constraining access to information, when removal actually represents an individual’s prerogative for privacy and reputation. Google actively “curate[s] its search results,” meaning its site is less an open space than “algebraic representation of privately owned services.”
The characterization of these issues and how privacy concerns and public right to information are represented will be crucial in how RTBF is considered in the US. Until then, Google will contest the French mandate applying the González case, portraying itself as a bulwark of the public’s right to information. The third party doctrine and Google’s sophisticated self-portrayal are both substantial roadblocks to developing the right to be forgotten in the United States.