Europe’s Internet ruling may cost dearly

 

This month’s bombshell decision from the European Court of Justice pronouncing a “right to be forgotten” on the Internet was couched as a principled stand for digital privacy. Looking closer, however, one could see a double standard at work: The enormously expensive effects of the decision fall squarely on the shoulders of search engines based mostly in the United States, while the European players left the courtroom free of obligation. The courage of the court’s convictions, it seems, applies only outside the borders of the European Union — a result that, while convenient in the short term,carries ominous implications for Europe’s future.

Although opaque in nearly every particular, the decision settles this much: A lawyer from Spain has the right to demand that Google remove links to a government notice, placed in a newspaper in 1998, that his repossessed home was being auctioned. In plain English, the court determined that the lawyer’s right to be forgotten — at least with respect to the long-ago and potentially embarrassing foreclosure notice — outweighed Google’s interest in linking to that information.

The court, unfortunately, did not speak in plain English. Even worse, it dumped the job of interpreting its words on those ill-equipped to do so: search-engine companies. The Google team is wonderful at writing code, but it is now saddled with the task of making judgment calls over which unflattering references to individuals should be scrubbed from search results. Should links to a doctor’s negative reviews be removed? The past behavior of a politician making a comeback bid? The conviction of a man who possessed images of child abuse? These are just three of the takedown requests that Google has received in the wake of the ruling. To make these determinations, Google has nothing to guide it but the laughably vague calculus of the decision, which requires removal of material that is “inadequate, irrelevant” or “excessive” – whatever those terms mean in the context of a search query — as “fair[ly] balanced” against the public’s right to the information. Certainly, these kinds of concepts cannot be plugged into an algorithm.

Of course, there is nothing novel about high-court opinions that are vague and perhaps even unworkable. Criticism of the U.S. Supreme Court has included the same charges from time to time. But some aspects of the European decision simply don’t add up. Most glaring is the illogical selectivity of the ruling. While the court required Google to remove the link, it let the Spanish newspaper off the hook, meaning the material that actually violates the lawyer’s right to be forgotten is allowed to remain on the Internet. The result makes no sense. If a store at the mall is selling banned products, the problem isn’t cured by removing the mall directory.

By handing down different fates to Google and the newspaper, the court is having its cake and eating it, too — standing up for privacy, only so long as the burden of that stand lands outside the continent.

In the long term, however, the court’s approach could cost Europe severely in lost investment and innovation.

Investors and tech entrepreneurs will surely take note that the cost of providing information over the Internet in Europe has just skyrocketed. Google and other search engines not only face difficult removal decisions, but they must also build massive systems to handle removal demands. If foreclosure notices qualify for deletion, that alone could account for millions of requests, to say nothing of unfortunate karaoke performances and Halloween costumes.

While Google may have the resources to forge on in Europe, tomorrow’s Google or Facebook or Tumblr may not. It isn’t difficult to imagine start-ups simply forgoing a European presence, given the high cost of doing business there. It’s a dire consequence, but by creating special rules that apply only within the European Union, the continent has set itself on a path toward cutting itself off from the global community.

The costs of that approach are truly incalculable. Forward-thinking members of the European Union should recognize that and recognize that the European Court of Justice’s attempt to secure cost-free privacy protection is too good to be true.

Craig Newman is CEO of the Freedom2Connect Foundation, a Washington-based nonprofit, and managing partner of Richards Kibbe & Orbe LLP.

The Washington Post

Read more From Our Inbox stories from the Miami Herald

  • Trying to ‘secure’ a border is futile

    Can borders stop immigrants?

  • Apples and Hurricanes

    Whenever Barack Obama seems in danger of falling, do we have to hear that George W. Bush made the cliff?

  • The great reclining seat wars

    There’s an old Seinfeld episode where Jerry and Elaine are about to board a plane and the gate attendant tells them she can bump one of them into first class. Jerry immediately takes the offer, explaining to Elaine that he’s flown in first class before — she hasn’t — so he knows what he would be missing. Sure enough, Jerry spends the flight sipping champagne with a super-model while Elaine sits in a middle seat squeezed between two fat guys who fall asleep on her.

Miami Herald

Join the
Discussion

The Miami Herald is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere on the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

The Miami Herald uses Facebook's commenting system. You need to log in with a Facebook account in order to comment. If you have questions about commenting with your Facebook account, click here.

Have a news tip? You can send it anonymously. Click here to send us your tip - or - consider joining the Public Insight Network and become a source for The Miami Herald and el Nuevo Herald.

Hide Comments

This affects comments on all stories.

Cancel OK

  • Marketplace

Today's Circulars

  • Quick Job Search

Enter Keyword(s) Enter City Select a State Select a Category