It has been almost a year since the European Court of Justice ruled that Google must respond to take-down requests by users alleging that search results on Google violate their right to privacy, a case popularly known as the Right to be Forgotten (RTBF) case.
The case is one of the many instances where the European Court has upheld the right to privacy of an individual, and while the ruling is an important win for individual rights, the judgment raises concerns about protection of free speech and expression on the internet.
The ‘right to know’ is central to the right to freedom of speech and expression and one can properly exercise his right to freedom of speech and expression only when he has access to non-partisan information.
For instance, consider a situation wherein ‘X’ is a candidate in an upcoming parliamentary election. X was convicted of a sex crime thirty years ago, an incident widely covered by the media at that time. It is likely that a Google search result relating to X might reveal the details of the incident to any voter looking to make an informed choice before electing his representative. It is highly probable that knowledge of the crime committed by X thirty years ago would adversely prejudice his candidature for the elections. X, in this case, has the option of sending a take-down request to Google for removal of search results on Google relating to the said incident. Under the RTBF ruling, Google must respond to such claims.
Google deals with such take-down requests on an ad-hoc basis; a large team of lawyers at Google determine whether the take-down requests are to be granted or refused and it is only when dealing with the complicated requests that outside experts are called. In all probability, X’s request would be granted by Google in this case.
While X benefits from the RTBF ruling inasmuch as his right to privacy is protected, one might argue that it jeopardizes the public’s right to know and make an informed decision.
While I agree that not every instance of take-down of content by Google would have much bearing on the public at large, I believe that the existing laws are adequate in protecting privacy of an individual. Further, it raises the issue whether “public embarrassment” should be a ground to allow censorship of content on the internet? Truth has always survived as a defence in cases where defamation has been alleged and if newspapers are allowed this particular defence, why should internet be regulated differently? Another concern which arises is that the ruling which at present is restricted to search results by search engines, may in future be extended to websites which host such content, thereby directly violating free speech on the internet.
Under copyright laws of various countries, any content which is said to be infringing someone’s copyright may be removed from the internet. The United States enacted the Digital Millennium Copyright Act (DMCA) which came into effect in 2000 and aims at preventing copyright infringement online. For instance, if a person uploads or shares a photograph on a website (the copyright over which is owned by someone else), the copyright-holder can request take-down of such content from the website; videos on YouTube which infringe someone’s copyright may be removed under similar requests.
In case a person finds embarrassing images of himself on the internet, he may resort to copyright laws to have the content removed from the internet instead of resorting to the RTBF law. This legal strategy was adopted by celebrities such as Jennifer Lawrence and others who were victims of a nude photo leak scandal last year. However, one of the legal loopholes in this case is that of establishing ownership of copyright over the photographs where such photographs are not selfies.
One area where copyright law can aid in protection of an individual’s right to privacy is in cases of revenge porn (covered earlier on the blog here). Revenge porn refers to the publication of intimate photos/videos of a person by his/her ex-partner along with personal details of the person in an act of revenge. Since 80% of revenge porn photos are selfies , the victim of revenge porn can succeed in having the objectionable content removed from the internet completely. The removal of the content from the website would result in its automatic elimination from the Google search result. This does away with the need to resort to take-down requests under RTBF ruling.
Recently, a group of 80 academic experts in an open letter exhorted Google to be more transparent in the way it deals with the take-down requests under RTBF. Specifically, the group has sought answers to the following questions, “What sort of information typically gets delisted (e.g., personal health) and what sort typically does not (e.g., about a public figure), in what proportions and in what countries?”
Highlighting the importance of addressing these issues, the letter states, “Google and other search engines have been enlisted to make decisions about the proper balance between personal privacy and access to information. The vast majority of these decisions face no public scrutiny, though they shape public discourse. What’s more, the values at work in this process will/should inform information policy around the world. A fact-free debate about the RTBF is in no one’s interest.”
It is for these very reasons that we need to carefully consider the impact that RTBF is having on freedom of speech online and ensure that it does not censor content which would otherwise inform public opinion.
There is a genuine question, to which there can never be any simple answer, or any definitively right answer, as to where the right to privacy ends and the public’s right to information begins. Both are important. However, I would submit that this is a question to be dealt with directly by legislative policy and judicial decisions. As lawyers, we would certainly suggest every possible strategy to a client in a particular situation, but from a policy perspective i’m not at all sure copyright protection should be seen as a possible substitute for explicit privacy rights: the consequences would be unpredictable, since this isn’t at all what copyright law is designed for.
Dear Sir,
Thank you for bringing out this pertinent point, which I had completely missed in my post. I agree that the objective of copyright laws was never to protect privacy, in which case we would need laws other than copyright laws to protect an individual’s right to privacy. What is debatable is whether RTBF is the appropriate privacy law in such cases.
Hi Devika,
While concerns about free speech are perfectly legitimate in cases of take-downs (similar to DMCA Takedown’s for copyright infringement), maybe the question we need to ask is how to develop a more transparent framework for balancing public interest in the information and individual privacy, where the control over speech has moved away from courts to search engines. I think, perhaps, in such a framework, and by the reasoning of the Court itself, the example of the politician X that you gave would be an instance of ‘publicly important’ speech, and therefore it would be reasonable for Google (or a public court) to deny its expungement.
The question of using copyright to enforce privacy claims is interesting, but I dont think it would serve the purpose, being both too broad and too narrow to balance the competing interests. For example, fair use defences would have no bearing on the privacy of an individual, and therefore would not adequately address the problem of balancing. What do you think?
Hi Divij,
That is an excellent point that you have made. If you could give me a hypothetical situation where fair use defence in copyright is used to counter claims of privacy, I am sure I can answer this question better.