European lawmakers and regulators will tell you that their recent adventures into Internet regulation are aimed at upholding a “fundamental human right” to privacy. They’ll claim the right to be forgotten is not a “super right” trumping other fundamental rights. But in their headlong rush to protect Internet users from themselves, they’ve done just that and downgraded other fundamental human rights like the right to free expression.
We’ve all heard about the European Court of Justice’s conjuring the “right to be forgotten” into case law. But European policymakers aren’t content with just a disastrous court ruling. If the European Parliament gets its way the right to be forgotten will be enshrined in law across the continent. Legislators say the changes are intended for the good of their citizens, but they have a selective view of which citizens — and which rights — deserve protecting.
In Europe, privacy is protected under Article 8 of the E.U. Convention on Human Rights. Privacy advocates and E.U. courts cited this article when suppressing Google search results. But courts and privacy advocates are forgetting Section 10 that protects the right of free expression. Free expression allows European citizens post content to the Internet with the expectation that it be available and searchable to all. Unfortunately, it seems the E.U. Court of Justice and now the European Parliament itself wants to deny its citizens this right.
Concurrent efforts in Spain and Germany to tax search results may not have an ostensible privacy focus, but they are part of the EU’s larger objective, and do have a direct impact on free expression.
Recently both countries enacted a “Google tax” — taxing search engines and news aggregators like Google, Digg and Reddit for that linking to newspapers’ content. While bigger companies may just pay the tax, smaller search engines are more likely to just suppress the search results.
While many argue privacy concerns and revenue generation motivate these actions, a fundamental motivation has to be limiting the dominance of US-based Internet companies in Europe. This base motivation can be seen in the Court of Justice’s clarification that E.U. privacy protections apply even to U.S. businesses with no presence in Europe.
Imposing artificial trade barriers, that’s one thing, but it’s quite another when those barriers suppress free speech and make it easier for bad actors to hide. Take for example the first couple of weeks of Google’s right to be forgotten. In the those early months, 12 percent of suppression requests were related to pedophilia, 30 percent concern fraud and 20 percent were about prior arrests or convictions. Sports celebrities such as soccer star Eden Hazard are asking Google to suppress all references of poor performances. It seems as though these unintended consequences weren’t enough to discourage the European Parliament from trying to enshrine the court’s decision into law.
These suppression actions ignore the two other parties to any search — the user doing the search and the publication hosting the content. Consider a constituent researching a politician’s history. This “right to be forgotten” violates the constituent’s right to education and knowledge. There is also backlash from publications such as the Guardian that see declining revenue due to suppressed links.
The proposed law leaves search engines in an unenviable position of interpreting an ambiguous law. For example, the law allows maintenance of “relevant” results, however, one person’s relevant is another’s irrelevant. Search engines might need a legal analysis of each suppression request.
Some suggest that “we just need more tools” to address the problem. But this is a bottom-up approach to giving users greater control. The E.U. seems unwilling to let industry lead the way and instead is considering a sledgehammer of regulation when it should look to light touch industry created reputation management tools.
So what can we do about European suppression of free speech and innovation?
First, Congress and the federal government should treat these European actions as the trade barriers they are. This means using our trade agreements, international relations and other pressures to break down these barriers to the US export of innovation and online services. Second, at the same time, we ask Congress to urge the European Parliament to avoid canonizing these dangerous precedents and instead allow the industry to help users in ways that avoid suppression of free speech and cutting the fibers of our online infrastructure.
Carl Szabo is policy counsel for NetChoice, a trade association of eCommerce businesses and online consumers, all of whom share the goal of promoting convenience, choice and commerce on the Internet.