Today, the European Court of Justice ruled that Google, and by implication other search engines, must allow for individuals to have certain personal data blocked from search results. The case involved a Spanish national who wished to have personal data involving a foreclosure 16 years ago, an issue that has long since been resolved, removed from Google’s search results. The ruling is being hailed as a major step forward in establishing a “right to be forgotten.” Critics will claim that judges should stay away from making public policy and leave that role to legislators.
A huge issue facing the courts these days is that technology adoption is accelerating much more rapidly than public policy and the political process cannot keep up. The Audiencia Nacional, the Spanish high court, explicitly recognized that issue and that’s why they referred this case to the European Court of Justice. Thus the ECJ had to interpret a law that preceded the technology within the context of how that technology is currently used. Here’s what the ECJ said in section 19 of its opinion:
… the actions raise the question of what obligations are owed by operators of search engines to protect personal data of persons concerned who do not wish that certain information, which is published on third parties’ websites and contains personal data relating to them that enable that information to be linked to them, be located, indexed and made available to internet users indefinitely. The answer to that question depends on the way in which Directive 95/46 must be interpreted in the context of these technologies, which appeared after the directive’s publication.
We can consider the action of the Court to be a stopgap measure, and should the politicians decide to catch up, then they will modify the EU Data Protection Directive. However, in this case, I would be surprised if the politicians actually do anything on this matter anytime soon. The public is pretty aroused these days about surveillance, whether by private sector entities like Google and Facebook or by government entities like NSA and GCHQ. The only way the EC would intervene here would be if the Court was too far out in front on this issue. The fact is that the Court is not way out in front of the public.
We are going to be in for at least a decade or so of technology public policy issues being settled more by courts than by parliaments – much like desegregation in the South between 1954 and 1964. Except in this case, the courts are not ahead of the population – they are just picking up the slack in the political process.
Keep in mind that while this ruling from a technology standpoint seems to have tremendous implications, from a public policy process this is a narrow ruling. Based on its interpretation of the EUDPD, the Court could have required Google to establish means of screening out personal information altogether. And by personal information, this means anything that could be linked to an EU citizen’s name. This would have put ad-paid search out of business. Instead, the individual must request that the information be removed, and then that information is subject to a balancing test — balancing the individual’s right to be forgotten verses the public’s need to know — so for public figures and for sex offenders for instance, the standard will be much higher. Furthermore, the ruling is specific to a search on an individual’s name, and the inclusion of the data in a list of search results. Other types of searches that may surface the information are not affected by this ruling.
Bottom line is that we have technologies that are fundamentally changing the world in a very rapid way, and the risk that companies and governments that are exploiting these technologies will bump up against fundamental societal values is very real. There is no way in liberal democracies that traditional legislative and executive rule-making processes can keep up. Until we reach some balance between the rate of technology adoption and the pace of legislative and rule-making processes, courts will play a larger part in the technology public policy process than they have in the past. So long as they don’t get out in front of the public on these issues, and keep their rulings narrow, they can serve a useful function of balancing commercial, individual and societal interests.