The European Court of Justice’s decision in Google v. Costeja González appears to compel search engines to remove links to certain impugned search results at the request of individual Europeans (and potentially others beyond Europe’s borders). What is more, Costeja may inadvertently and ironically have the effect of appointing American companies as private censors and arbiters of the European public interest.
Google and other private entities are therefore saddled incomprehensibly with the gargantuan task of determining how to “balance the need for transparency with the need to protect people’s identities,” and Costeja’s failure to provide adequate interpretive guidelines further leads to ad hoc approaches by these companies. In addition, transparency and accountability are notoriously difficult to cultivate when balancing delicate constitutional values, such as freedom of expression and privacy. Indeed, even the constitutional courts and policy makers who typically perform this balancing struggle with it—think of the controversy associated with so-called “judicial activism.” The difficulty skyrockets when the balancers are instead inexperienced and reticent corporate actors, who presumably lack the requisite public legitimacy for such matters, especially when dealing with foreign (non-U.S.) nationals.
The Costeja decision attempts to paper over the growing divergence between Anglo-American and continental approaches to privacy. Its poor results highlight internal normative contradictions within the continental tradition and illustrate the urgency of re-conceptualizing digital privacy in a more transystemically viable fashion.
Informational privacy must ultimately be re-theorized in a manner that would obviate—or at the very least palliate—the need for a stand-alone, ill-defined, and under-theorized “right to be forgotten.” That right is in essence a procedural one predicated on the impracticable idea that individuals “own” data, rather than a right to their identities themselves. It therefore fails to accord with the long-established (continental) tradition of personality rights, which, unlike its common law counterpart, emphasizes personhood not property. In the end, a more robust construction of privacy predicated on protecting identity would allow for a more nuanced balancing of privacy and freedom of expression.
Consequently, rather than further expanding an already divisive, property-based procedural “right to be forgotten,” Europeans (and perhaps others as well) would do better to harness the ample protections found in traditional, substantive civil concepts pertaining to privacy—most notably personality rights—so as to develop a coherent set of principles that contextualize identity and the perception of personal (and/or corporate) identity in the digital realm. For unlike the poorly theorized “right to be forgotten,” which unceremoniously imports all the rights traditionally associated with property, the civil tradition offers time-tested, flexible principles for this purpose.