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Op-ed Placement

    A European Decision That Could Dismantle the Internet

    Originally Published in RealClearMarkets on 6/5/14.

    In response to a recent legal decision in Europe, Google has released a new form for its European users that will allow them to request that links to certain articles about them be removed from the search engine. While European privacy advocates who have been pushing for a "right to be forgotten" may applaud this effort, the impact on the flow of information across the Internet is substantial. As Jonathan Zittrain of Harvard Law School puts it, "The most important harm of this decision is not to the search engine companies, but to the public at large, and its ability to find accurate public information." Rather than an open and public exchange of information, Europe's new law injects an online censor to govern the accessibility of freely available public information.

    Under the May 13 decision by the European Court of Justice (ECJ), Google was ordered to remove links to an old newspaper story about the foreclosure on Mario Costeja González's home after Mr. González claimed the story was irrelevant. Importantly, the links were to a 1998 newspaper article that was publicly available. Nonetheless, Mr. González complained that he had worked out his finances and the repossession never took place. Therefore, he wanted the links to the story removed. The ECJ sided with Mr. González, claiming "the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person's name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful."

    Clearly, this edict goes beyond instances of libel or slander; it requires search engines to police the public information available to Internet users. In this sense, Europe's model of the Internet is shifting away from free speech and more towards the Chinese model, where a centralized entity filters information before it reaches the public. While Google's search engine, with a 78 percent share of global searches, is at the center of this controversy, the implications of the decision are more far reaching. Other companies, such as Microsoft, have search engines, and social media sites such as Facebook and Twitter are also searchable and may also struggle to comply with the ECJ's new law.

    Google's response has been to create a form that Europeans can submit to the search engine, along with some form of identification to ensure the veracity of the request. Google will then "assess each individual request and attempt to balance the privacy rights of the individual with the public's right to know and distribute information." To facilitate the process, Google is also creating a panel of experts to determine how to comply with the new law. Whether this will help remains unclear because Europe's data regulators will have the final say on compliance.

    In any event, the expert panel has a daunting task ahead. The Internet is a network of networks spanning the globe, with Europe comprising roughly 22 percent of Internet users-that's more than 500 million Internet users. But information is stored on servers throughout the world, so attempts to contain removal requests to only Europe as Google is attempting may prove challenging. Litigation and European bureaucrats have the potential of redefining how the Internet works, which poses a real threat to free speech and the free flow of information.

    Privacy is an important issue, and the Internet has reshaped expectations of privacy. But a heavy-handed decision by data bureaucrats with unwieldy implementation implications does little to promote meaningful Internet policy. Even the ECJ's Advocate General Niilo Jääskinen argued against limiting online access to publicly available information: "requesting search engine service providers to suppress legitimate and legal information that has entered the public domain would entail an interference with the freedom of expression of the publisher of the web page. In his view, it would amount to censorship of his published content by a private party." The ECJ decision has the potential to dismantle the Internet and limit Internet user access to information that is clearly public in nature. This is a significant retreat from free speech and open inquiry and a true threat to Internet freedom.