The European Court of Justice is considering a test case on the tension between freedom of expression and individual privacy.
The outcome could change the way Google indexes its search results, and may even fundamentally change what information we can access online.
Google has appealed to the ECJ after losing in the Spanish courts in a case - representative of nearly 200 others - where Spain’s data protection authority, AEPD, had asked it to remove certain links to information about individuals from its search results.
In this case, the link pointed to a notice on a newspaper’s website about the auctioning of a man’s property following non-payment of social security charges. The information was not wrong - and there had been a legal obligation to publish it - but it was old, and likely to haunt the man’s reputation.
In another example, a surgeon complained that a malpractice charge appeared high up in the search results for his name, while his acquittal didn’t appear at all.
Google argues that it is merely a conduit of the information which it indexes, and that it is up to the publishers to remove the content from their website. Its lawyers told the 15-judge panel at the ECJ that Google isn’t a “data controller” but just an “intermediary in terms of the data which it indexes”.
Requests to remove information when it was put online by a newspaper would mean a big shift in responsibility from the publisher to the search engine and that would amount to censorship.
“Only the publisher can take the view to remove content,” Google’s lawyers added. “Once removed from the source webpage, content will disappear from a search engine’s index.
Of course there will be times when information is published online that is subsequently found to be incorrect, defamatory or otherwise illegal. Such content can be removed from the source website and from search engines. But search engines should not be subject to censorship of legitimate content.”
A preliminary opinion from the EU’s advocate general is expected in June. The European Commission will look closely at this when framing its “right to be forgotten” privacy directives later this year.
My prediction is that the ECJ, steeped in the more limited continental European tradition of free speech than the US where Google is based, will side with the Spanish data protection authorities. In that case, Google would become responsible for the information it indexes.
It is tricky and hugely important. While one fully sympathises with people who can’t live down their pasts because of something published online, it does place a huge onus on Google to police the net.
And where to draw the line between unfair harm to an individual’s reputation and just censoring free expression of opinions well-known people happen not to like? The internet has been a revolutionary and very free place. Now it may become more reined-in.