Sooner or later, every argument about regulation of the internet comes down to the same question: is this the thin end of the wedge or not? We saw a dramatic illustration last week when the European court of justice on a case involving a Spanish lawyer, one Mario Costeja González, who objected that entering his name in Google's search engine brought up embarrassing information about his past (that one of his properties had been the subject of a repossession).
Mario Costeja González said the debt issues had been resolved long ago and were no longer relevant. So he asked the newspaper that had published the information to take down the notices and Google to delete the links to them. When they refused, he complained to the Spanish data protection agency that his rights to the protection of his personal data were being violated. The agency ordered Google to remove the links. challenged the order and the Spanish courts referred the matter to the European court in 2010.
Which is how we got to last week's judgment. The court ruled that the EU's 1995 data protection directive means that individuals should have an opportunity to insist that Google (and presumably other search engines) remove certain search results that come up in a search for their names, not because they are false, or infringe copyright, but because they violate a "respect for private life" or a "right to protection of personal data".
This is what the mainstream media, in their cheery, clueless way, have called "the right to be forgotten". The judgment triggered a storm of thin-end-of-the-wedge protests. "This ruling," , for example, "opens the door to large-scale private censorship in Europe. It may open the floodgates for tens of thousands of requests to have legal, publicly available information about Europeans taken out of a search index or links removed from websites… While the ruling means to offer protection, our concern is it could also be misused by politicians or others with something to hide."
It's worth noting that Waterworth is the head of the Brussels office for the Computer and Communications Industry Association, which counts Facebook, Microsoft and Google among its members, and that these companies are mightily pissed off by the court ruling. Asked about it at a company press conference, Google's executive chairman, Eric Schmidt, said: "A simple way of understanding what happened here is that you have a collision between a right to be forgotten and a right to know. From Google's perspective that's a balance. Google believes, having looked at the decision, which is binding, that the balance that was struck was wrong."
For "wrong" read "also annoying and expensive". Google will have to tool up to deal with take-down requests in each of the 28 countries of the EU. It will need "an army of removal experts," one (anonymous) company source said. And it seems that already people are beginning to issue take-down demands. This additional EU-imposed expense is obviously annoying to an American company, but I think we should put away the violins and try to get this into perspective.
So, is the judgment the thin edge of a censorship wedge? Answer: in practice, maybe. We'll have to see how it pans out. After all, the ruling does not preclude anyone from publishing anything on a website (subject to the usual restrictions about libel, hate speech, Holocaust denial etc): it just makes that information harder to find. Why? Because if Google can't (or chooses not to) find a website, then for practical purposes that website doesn't exist.
That's power. Real power. So one way of reading the court's verdict is as a way of making a US company, whose business model depends, ultimately, on exploiting its users' personal data, conform to European standards. En passant, it would be nice to see the EU taking a similarly tough line on the US National Security Agency's cavalier disregard for Europeans' right to privacy, but that's obviously a step too far.
The most insightful comment on the judgment came from Jonathan Zittrain of the Harvard Law School. "I think it's a bad solution to a very real problem," he said, "which is that everything is now on our permanent records." He's right. There are good reasons why, for some people, for example, public figures, and in some contexts, information should always be publicly available. But for most people there ought to be some kind of statute of limitations. The problem is that our networked environment, as currently configured, allows for no such statute. All we have is the thin end of a wedge.