By Kyu Ho Youm, For The Straits Times

European court ruling on "right to be forgotten" gaining traction worldwide

The European Court of Justice (ECJ) held last May that the EU data protection law allows individuals to demand that Google and other search engines should delist search results relating to "prejudicial" information about them. -- PHOTO: BLOOMBERG
The European Court of Justice (ECJ) held last May that the EU data protection law allows individuals to demand that Google and other search engines should delist search results relating to "prejudicial" information about them. -- PHOTO: BLOOMBERG

Suppose: As a teenager, you served jail time for a youthful transgression. Now you are an upstanding citizen and have been a respected member of your community for over 20 years. In every possible way, your case exemplifies the value of a "second chance" in life.

Then, all of a sudden, your life is turned upside down because people start Googling you and your arrest and conviction from the early 1980s appear at the top of the Google search results.

Naturally, you are outraged that this outdated and irrelevant information about you is so easily accessible after all these years.

You wonder: Is there any way for you to scrub the information about your teenage mistake from Google? Yes, there is a "right to be forgotten" if you are a resident of a European Union (EU) nation.

The European Court of Justice (ECJ) held last May that the EU data protection law allows individuals to demand that Google and other search engines should delist search results relating to "prejudicial" information about them.

The controversial ECJ ruling epitomises the growing impact of European law on free speech law around the world, and illustrates the declining influence of American law abroad.

All the more true when it comes to how to balance informational privacy with freedom of expression.

The emergence of Europe as a key player in (re)drawing the boundaries on freedom of speech and the press should come not as a big surprise. For it should result from the still unfolding ramifications of EU law for American tech companies in coping with the strict privacy rules in European countries.

In the United States, freedom of expression is in so preferred a position that its protection stands out from the rest of the world.

For example, hate speech is not a crime in American law. Internet service providers are not liable for disseminating false, defamatory information posted by third parties. No foreign libel judgments will be enforced in America if they violate US free speech standards.

This explains in part why the right of privacy is an expendable afterthought for American companies in handling personal data.

By contrast, Europeans do not necessarily hold freedom of expression as overriding its competing individual and societal interests. Hate speech is prohibited as a criminal violation. Reputation is rarely dismissed as less important than defamatory speech. Privacy in Europe is given as much weight as freedom of expression, if not more.

Amid the ongoing vociferous debates on online privacy globally, an increasing number of countries have turned to Europeans' experience with data protection as a frame of reference, not to Americans' free-speech-favoured approach. Indeed, Europe's privacy regulations are now viewed as the world's "default privacy settings".

More courts and law-making bodies in Brazil, Canada, France, South Africa, and South Korea have examined or re-examined how to better protect the privacy of their citizens in the Internet era. They have drawn from various EU data protection rules and the ECJ ruling on the right to be forgotten.

Will the ECJ ruling be enforced outside the EU? In complying with the landmark ruling, Google has limited its removal of search results to Google's local European sites like Google.de. And it has refused to delete links from Google.com thus far.

But the 28 national privacy regulators of the EU posited last November: "In order to give full effect to the data subjects' rights (to be forgotten) … de-listing decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects' rights and that EU law cannot be circumvented."

From the perspective of American free-speech voluptuaries, the right to be forgotten in Europe is arguably repugnant.

A leading US Internet law commentator has characterised the ECJ ruling as "the worst Internet law policy development" of last year. Nonetheless, privacy advocates view the right as a powerful counterpoise to Google and other American companies that tend to be nonchalant about individuals' privacy.

It is not clear how Google will respond to the extraterritoriality issue of the right to be forgotten. Google's response will be due out this week.

No matter how Google addresses the global application, EU privacy law will continue to inform the policy choices that lawmakers, government regulators, and private stakeholders across the globe will make in the future.

If Google's record of compliance with the ECJ ruling for the past six months is an indication, few will dispute the global impact of EU law. The EU privacy authorities' guidelines on the right to be forgotten confirm that Europe, not the US, is setting the Internet law paradigm.

Google is busy reacting to the EU guidelines, and the oft-touted US exceptionalism on free speech is increasingly irrelevant.

stopinion@sph.com.sg

The writer is Jonathan Marshall First Amendment Chair professor at the University of Oregon. This article is, in part, drawn from his recent lecture on informational privacy in the Internet era at Nanyang Technological University's Wee Kim Wee School of Communication.