What’s Wrong with Erasing Information from the Web?

The recent decision by the Court of Justice of the European Union requiring Google to remove outdated personal information at the request of a Spanish citizen raises troubling questions.

The case was brought to the Court by Mario Costeja Gonzalez, who discovered that a search for his name on Google produced information indicating that his home had been repossessed and put up for auction because he had failed to make social security payments in 1998. The Court held that Mr. Costeja’s right to privacy took precedence over Google’s economic interests as a firm operating a search engine and over the interest of the general public in access to the information. Some commentators have expressed concern that the decision will do significant damage to freedom of expression.

The arguments on the privacy side of this case are fairly clear. So far as we know, the man whose home was repossessed is not a public figure, has not sought the public limelight, and has done nothing that would make his personal financial transactions a matter of public interest. If a government agency had information about such matters as his earnings, his banking, and his tax payments that had not previously been made public, it would have no basis for making these public either on its own initiative or on the basis of someone else’s freedom of information request. Mr. Costeja would have a right to shield that information against government disclosure.

In effect, he argues, he should enjoy the same right when dealing with Google. Its interest in disseminating such information is economic. From his standpoint, Google’s activities in this area may be compared to that of a credit bureau which assembles and disseminates information on the financial transactions of individuals, for its own commercial purposes. It is a stretch to suggest that Google’s activities in this matter warrant protection as a matter of freedom of the press.

The difficulty arises because, when the repossession of Mr. Costeja’s house took place in 1998, it was reported in a newspaper. Apparently, it was published then as a legally required notice of a public auction. The fact that the information was made public previously as a matter of law significantly mitigates the argument that disclosure again at a later date is an intrusion on privacy.

Google’s role in this matter was to do business by making accessible information that was already in the public domain. That is its main activity. The fact that this activity has met with very substantial business success indicates that it is greatly appreciated by a large share of the public. If it were not for Google, however, the matter of the skipped social security payments and the repossession might well be forgotten. The violation of his rights, Mr. Costeja contends, and so he persuaded the Court, took place when Google capitalized on that long past requirement of publication in pursuit of its own economic interests.

To the extent that there is a conflict of rights here, it is not because freedom of expression is involved. The rights at stake are Mr. Costeja’s right to privacy on the one hand, and the public’s right to information on the other hand. Though the public does not have an inherent right to information about an individual’s personal financial transactions, it should have a right to obtain information that was once legitimately published by a newspaper. The fact that it was published about a decade and a half ago should not nullify that right to information.

Putting previously published information off limits could have very serious consequences for freedom of information. No one seems to suggest that it would have been a violation of privacy if someone went to the trouble of doing research in old newspaper archives to find out about the repossession of Mr. Costeja Gonzalez’s home. Employment of a labor saving device, Google’s search engine, is not a compelling basis for transforming this into a violation of privacy.

This is an appropriate matter to be dealt with by a regulatory process in which both the right to privacy and the public right to information may be considered. Probably, the regulators should hold that the invasion of privacy in this instance, given previous publication, was too minor to warrant the imposition of sanctions on Google and certainly insufficient to overcome the right to information. That right should not be limited to what may be obtained from the government. It includes what a citizen may be able to discover on her own with or without the assistance of present-day technology.

It is not necessary to elevate Google’s interest in the matter to an exercise of freedom of expression. Even though its interest in this matter was commercial, Google’s activities in such matters facilitate the public’s right to information. It will be time enough to hold Google accountable when it transgresses reasonable rules prohibiting more serious intrusions on privacy such as disclosure of confidential personal information that never entered the public domain.