MAX MOSLEY enjoyed sexual practices which many might find odd. But that was his business,so when in 2008 a now-defunct British tabloid wrongly dubbed him a participant in a “sick Naziorgy”, he sued it for breaching his privacy and won. The allegations, however, remain on theinternet. If you type in “Max Mosley”, Google helpfully tries to complete the search: the first fouroptions are “video”, “case”, “pictures” and “scandal”. He—and many others who feel their livesare tainted by the smears and irrelevancies which search engines link to their names—wantredress.
Many European politicians are sympathetic to this. Countries such as France and Britain havelong allowed the erasure of criminal records once convictions are spent. The EuropeanParliament has backed a “right to be forgotten”, though to become law it would need theapproval of all the European Union's 28 member states. Mr Mosley has won the first round of alegal battle in Germany to block the images appearing on Google searches there.
Now the European Court of Justice (ECJ), the EU's highest court, has boosted this cause in alandmark case (see article). A Spanish lawyer, Mario Costeja González, sued Google becauseits search results linked his name to a newspaper article from 1998 about a now-resolvedlawsuit. The court ruled that Google was a “data controller” under the 19-year-old Europeanlaw on data protection, which gives individuals strong rights over data that others hold onthem. It said Google could be required not to display links to information that is “inadequate,irrelevant...or excessive”, given the purpose for which they are processed, and the timeelapsed. Individuals will be able to appeal to their national data watchdogs if they are turneddown.
The court's desire to protect victims of misunderstanding and malice is understandable. Buta right to be forgotten would be hard to implement. Even if Google is made to censor itssearch results in Europe, in America the First Amendment's free-speech provision usuallytrumps privacy concerns. With modest technical know-how, European internet users will beable to make American-style searches. Europe will hardly want to build a Chinese-style firewall toprevent that.
And even if it were practicable to force companies to erase the past, it would do more harmthan good. It would hamper everyone interested in finding out inconvenient truths aboutthose who would like their past covered up. The ECJ ruling makes allowance for a public-interest defence, but it will mostly make commercial sense for Google and other search enginesto take down material as soon as someone complains, rather than to weigh the merits of eachcase.
The right to be forgotten would also undermine the internet's great strength. The internet is,in effect, a library of unimaginable size—full, as all libraries are, of news, gossip, archivematerial and other stuff which may to varying degrees be irrelevant, wrong or mad. It hasmade the best and worst of such information more freely available than ever before. Searchengines should be like library catalogues—comprehensive and neutral, and without fear orfavour of what the contents may reveal, or how they may be used. It should be up toindividuals, not governments, to distinguish what is right or wrong, useful or immaterial.People should be wary of ceding the power to make that judgment, even to a court thatthinks hard about it and backs the underdog. As James Madison said, “I believe there are moreinstances of the abridgment of the freedom of the people by gradual and silent encroachmentsof those in power than by violent and sudden usurpations.”