March 26, 2017

Privacy: A Personality, Not Property, Right

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. [Read more…]