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Importing Europe’s Law To America?

May 23, 2014

The recent European court decision enshrining the “right to be forgotten”  has led to a certain amount of controversy. It is important to note that how this decision will be implemented will be up to no less than 28 individual national bodies.  The headaches that will produce for Google and other search engines should not be underestimated.  But for us, there is one very big problem:

 

Will Google Products offered outside of Europe be held to the same standard?

This is a serious question. After all, no matter what Google does in Spain, I can always go to Google US or Google UK and get un-redacted search results…unless of course the Spanish government holds that ALL Google search engines should comply with their demands.  While one can argue (as have many commentators) that the Spanish judgment would be unenforceable outside of Spain, they could target any presence Google has in the nation itself.

If this is the case, then we might start to see a situation where Google (And other search engines) are forced to comply with the least lenient nation they have operations in. In other words, while I do not live in Spain, I may find that my search engine has been impacted by a Spanish court’s ruling. So long as Google has any presence within Spain,it is vulnerable to this sort of legal action.

What makes it more difficult is that the natural impulse of anyone using a search engine will be to find the search engine that gives the best and most accurate results– and a search engine laboring under the need to comply with often arbitrary demands to remove this or that from their results will be far from the best.  Indeed, the least expensive choice for a search engine might be to simply automatically remove results whenever they receive a request. If a  nation’s courts were to decide that the “right to be forgotten” encompasses every iteration of the search engine– that a ruling applying to Google in Spain is also binding on Google in America the company may indeed find itself either complying with Spain’s demands in order to protect it’s investments in Spain.

This could see individuals engage in venue shopping to find the nation that is most favorable to these request.  The same thing occurred with Britain’s extremely plaintiff friendly libel laws,  leading to a robust industry in libel tourism when individuals who were not residents of Britain used British courts against other companies and individuals who had no presence in Britain.  It got so bad that the United States Congress unanimously passed the SPEECH Act to prevent the enforcement of libel judgments in America unless they were conformity with the First Amendment.   Of course, the problem is that such an act would not protect a company with a presence in another nation that might enforce a legal judgement upon it.

So, while we cannot say for certain how this new principle will play out, given that each European nation will probably come up with its own method of handling requests to be “forgotten” it is important to keep in mind that what is happening in Europe may very well impact how search engines in the United States behave.   The very nature of the internet makes it harder to separate out these kinds of decisions, meaning that this new state of affairs in Europe may very well have a major impact, not just in Europe, but America as well.

 

 

 

 

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From → Censorship, Politics

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