Christopher Caldwell: Google has to be censored – free speech can scar

Of all the human traits, none has been so greatly magnified by the internet as the capacity to be humiliated. People have always written letters when drunk, tripped over carpets and confided their secrets to gossips. It is only in recent years that they have had the experience of being followed online for an entire lifetime by a crime report or a sex tape. For more than a decade, googling the name of Mario Costeja González has brought up links to a 1998 official notice in Catalan from the big Barcelona paper La Vanguardia, announcing the auction of his home for debts. It was a big deal for Mr Costeja and this week the European Court of Justice brought him a measure of relief. It ruled that Google could be made to remove the links in the name of a “right to be forgotten”.

This right has a sinister ring in English – it seems to entitle the bearer to control or suppress the thoughts of others. In Spanish, “derecho al olvido” means only that one has a right to turn over a new leaf, to consider one’s debt to society paid. Nothing is actually forgotten. La Vanguardia retains the notice on its website, where it can still be called up. The case has been cast as a victory for privacy bought at the cost of risk to free speech. But the risks have been exaggerated.

Thanks to the efficiency of search engines, time no longer heals all wounds. This is due to the intersection of two fundamental truths. First, nobody’s perfect. Second, very few people come to the attention of newspapers, law enforcement agencies and other bodies that post information on the Internet by being, say, a good mother, a loyal husband or a model employee. This dynamic has its worst effects on modest people – those who have only ever come to the attention of newspapers once. There are many perfectly decent people in Mr Costeja’s position who carry around the worst thing they have ever done like a nickname or a scar.

When stigmatisation for even minor misdeeds becomes permanent, the case grows weaker that doing something about it violates free speech. A problem arises that resembles the plight of former inmates of America’s vast prison system. The internet has spawned a “background check industry” that would make millions of young men unhirable if their records began floating around online. But 12 states now have “ban the box” laws that forbid asking job applicants if they have served prison time. This is a limitation on employers’ free speech, but the alternative is a return to pre-modern social relations – based on status instead of contract.

Google responded icily to the European verdict. But it is reasonable to make Google exercise some of the responsibility for protecting people from being stalked by their own data. With a reported 90 per cent of the European search business, its position resembles that of a utility. Google profits from the data it amasses, curates and conveys but it has not traditionally been regulated as a media organ. The European court has classified it instead as a “data controller”, which leaves it subject to data protection laws.

It is unclear how those laws, and the principles of “net neutrality” more generally, apply to Google. The company has argued on both sides of certain enforcement issues. It has seen itself as protected by free speech rights but not vulnerable to libel laws. It dominates a borderless market – but parts of the Costeja decision addressed whether it was subject to Spanish laws at all. Regulation at the user level could well be a boon to Google, serving as a barrier to entry against upstart search engines. The company has been quite capable of dealing with requests to remove videos from its YouTube site. Making the company susceptible to regulation, though, would alter its special position in Europe. Until now it has been almost a sovereign power.

Last year California passed an “eraser bill” permitting minors to request certain things be scrubbed from their online record. By applying it to children, the state established a moral condition for a right to internet privacy – it was for victims, not citizens. The European decision is more modest. It does not require removing any web pages from the internet. But it goes further towards establishing internet privacy as a right. Children may not even be the ones who most need a right to forget. They have had instilled in them an Internet Age circumspection about sharing too much online. People over 40 lived a pre-internet youth. Their brushes with humiliation have been mostly forgotten. But adults in their 30s occupy an awkward intermediate generation, one that sinned according to the old rules and now must atone according to the new.

It is they who need an internet regime that remembers indulgently – or not at all.


Christopher Caldwell is a senior editor at The Weekly Standard


Fonte: FT