The Twenty-Six Words by Jeff Kosseff

Author:Jeff Kosseff [Jeff Kosseff]
Language: eng
Format: epub

Privacy and free speech often conflict. Even if a website contains information that is true—and thus not defamatory—it still may infringe on an individual’s privacy. Whereas Europe’s freedom of expression protections are weaker than those in the United States Constitution, its privacy protections are far more explicit. The United States Constitution does not explicitly state that individuals have a right to privacy, although courts have found privacy rights in, among other provisions, the Fourth Amendment’s prohibition of unreasonable searches and seizures and the Fourteenth Amendment’s Due Process Clause. In contrast, Article 8 of the European Charter of Fundamental Rights—which is based on the values of the European Convention on Human Rights and enforced by the Court of Justice of the European Union—states that everyone “has the right to the protection of personal data concerning him or her” and that the data “must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.”³⁵

Europe has codified those values in its data protection legislation. A Europe-wide directive passed in 1995 restricted the ability of companies to collect, use, and share personal information, and provided individuals the ability to request the erasure or blocking of data that violates privacy rights. Each member state passed privacy laws that are based on the EU directive, and the state’s data protection regulators enforced the law. Europe’s strong belief that privacy is a fundamental human right often conflicts with its citizens’ free expression rights. The conflict between privacy and free speech became international news on May 13, 2014, when the Court of Justice of the European Union issued its ruling in Google Spain v. Costeja Gonzalez,³⁶ better known as the “Right to Be Forgotten” case.

In 2010 Mario Costeja Gonzalez was upset that a Google search of his name would find two 1998 articles in La Vanguardia newspaper about attachment proceedings connected to social security debts. Gonzalez, who lived in Spain, asked the country’s data protection regulator to order the newspaper to make technical changes so that the articles do not appear in search results, or to delete the article entirely. He also asked the regulator to prohibit Google from including the articles in its search results for his name.³⁷

The regulator refused to order the newspaper to delete or change the articles. But the regulator concluded that the data protection directive allowed it to order Google to deindex pages that violate individuals’ “dignity” and general rights to privacy. Google appealed through Spain’s court system, and the case was sent to the Court of Justice of the European Union, which has the final say in interpreting European laws such as the Privacy Directive (the European Court of Human Rights, which ruled on the Delfi case, has the final say on the European Convention on Human Rights).³⁸ The Court of Justice recognized the need to balance the ability of search engines to make information public with the individual rights to privacy. The balance between those

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