Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Thursday, May 15, 2014

The European Court of Justice, Google, and "Imbalancing Tests"

On Tuesday of this week, the European Court of Justice issued a ruling that has been described as upholding a "right to be forgotten." More specifically, the court held that the operator of a search engine (in this case, Google) qualifies as a data "controller" for purposes of the European Privacy Directive of 1995; that such an operator is therefore subject to European privacy laws like the Directive; and that those laws--at least as they currently stand--require an operator to honor an individual's request to take down a link that violates that individual's right to privacy. In this case, the link connected the complainant with some debt issues that he had encountered many years before and that he claimed had become "irrelevant." A summary of the ruling can be found here.

The court seemed untroubled by the fact that all of the various pieces of data connected by the search engine were publicly available. The court shrugged this off, noting that absent the search engine it would in many cases be substantially more difficult to associate one piece of online data with another.

The court also seemed unmoved by the fact that all of the various pieces of data might be (and, in this case, were) true. This is not inherently inconsistent with United States law--tort claims like public disclosure of embarrassing private facts rest upon the wrongful sharing of truthful information. But our First Amendment jurisprudence recognizes that we need to tread particularly carefully when we engage in the regulation or punishment of the dissemination of accurate facts--a perspective that seems largely, if not entirely, absent from the European Court of Justice opinion.

Perhaps the most troublesome aspect of the court's decision, however, relates to the solution it offers where it does see some potential concerns. Although the court suggests that in most instances an individual's claim of privacy should prevail, it acknowledges that in some cases other considerations--like the public interest in having information about a political figure--will outweigh that claim. In other words, when it comes to worries about the repression of publicly important information, the court consoles itself with the idea that the search engine operator will apply a balancing test to sort things out.

If this is indeed what the court has in mind then it is a dangerous and deeply flawed approach. Among other things, it transforms search engines into censorship engines.

But here is perhaps the greatest failure of this model: it fails to recognize that "balancing test" is a misnomer. Despite the common use of the term, we never reach decisions by "balancing." "Balancing" suggests that everything is weighed equally; the scales are in the same position. That is not a decision. That is indecision. That is not where we end. That is where we begin.

Decisions are made by achieving an imbalance. One thing is given greater weight than another; it wins; and this determines our next steps. In this sense, appeals to a balancing test are a dodge because they fail to answer the critical question: what matters more to us?

Under our First Amendment jurisprudence, what matters more to us is that people have as much information as possible--subject to some necessary and grudging exceptions. We think this makes us better and more informed participants in the democratic process. We think this respects us as individuals and allows us to pursue our interests, passions, and questions of conscience without interference from a higher authority that thinks we're striking the wrong "balance."

"If there is any fixed star in our constitutional constellation," Justice Jackson famously declared in the Barnette case, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ..."

The notion that employees of search engines, high and petty, will decide what is and isn't important for us to know based on the imbalance they strike is a deeply unsettling one and should trouble our sleep.  


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