Europe’s ‘Right to Be Forgotten’ Needs Limits

(Bloomberg Opinion) -- An adviser to Europe’s top court issued an opinion this month on behalf of liberty, judicial restraint and common sense. Here’s hoping the court heeds his recommendations.

At issue was the so-called right to be forgotten, a muddled and misguided legal concept under which any citizen of the European Union can ask search-engine companies like Google to take down links to information about them that they consider “inaccurate, inadequate, irrelevant or excessive.”

In 2015, France’s data regulator concluded that this right must be vastly expanded. It demanded that Google take down the offending links not just on its European domains — such as google.co.uk or google.fr — but globally. Anything less, it said, would not be an “effective” recognition of the right.

On Jan. 10, Advocate General Maciej Szpunar, adviser to the European Court of Justice, recognized this ruling for the folly that it is. He recommended that, going forward, the court “limit the scope” of the EU’s demands on search engines.

It should indeed — because France’s ruling is triply wrongheaded.

One problem is that it adds to an undue burden on a private company. Since 2014, Google has fielded some 770,000 requests to take down links, covering nearly 3 million web addresses. In each case, it must manually determine if the request is valid or if leaving the link up would be in the public interest. As an ad sales company, Google has no particular competence for such judgment calls. Yet a misstep could theoretically incur fines of up to 4 percent of yearly revenue — or about $4.4 billion.

Another flaw is the ruling’s legal rationale. Whatever opinions may prevail locally, France has no right to dictate what internet users in other countries may view. In fact, such demands could violate laws or rights in other jurisdictions, and would undoubtedly invite lawsuits. EU mandarins may see the virtue in censoring legal and factual speech in the interests of protecting privacy. Other countries will see things very differently.

A final concern involves precedent. Plenty of autocrats would like to export their censorship schemes or otherwise control what the world sees about them online. By the regulator’s logic, Google is obligated to listen to them. Such a precedent threatens to let the most restrictive regimes set de facto policy worldwide, and would deal yet another blow to the principle of a free and open internet.

For all that, France’s ruling fails even on its own terms. Few Europeans try to evade privacy rules by using overseas domains to look people up, and Google estimates that its geolocation tools stop 99 percent of those who do. Thus the practical effect for Europe will be effectively nil.

While this ruling may be useless, though, it isn’t harmless. When it issues its decision later this year, the court should rein in this overreach, as the advocate general advises, and affirm that the right to be forgotten doesn’t extend beyond the EU’s borders. Europe’s regulators, for their part, should try to remember that their vision of the internet isn’t a universal aspiration.

Editorials are written by the Bloomberg Opinion editorial board.

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