The Case That Won't Be Forgotten

Abstract

In May 2014, Europe’s highest court planted a flag in the digital rights desert, declaring that individuals have limited, conditional rights against search engines. Popularized as the “right to be forgotten,” the case affirmed a right to data delisting. Specifically, European law provides a right to correct or block personal information from appearing on name searches if that information has lost its timeliness, relevance, or accuracy, and if it holds no public interest. \nThe European case has inspired a tremendous and vigorous public debate, marked by the general sentiment that it represents a worrying development for the Internet. Yet, the greater significance of the case has been largely overlooked. In some modest but incomplete way, the case recognized and protected our fundamental rights over personal data—those meaningful, yet intangible, links that are the building blocks of our identities and relationships, and that have become the substrate of the digital economy. \nThe issues raised by this ruling run deep. The debate that it should spur is a complex one. In the case’s aftermath, however, we have seen a systematic, near-comprehensive dismantling of this broader discussion, which has narrowed to the extent that the real issues are in danger of being, themselves, “forgotten.” The ruling was issued against Google—the East India Company of the digital age—and the company made no secret of its dissatisfaction with the outcome. While it responded swiftly and prominently, Google also managed to flatten many dimensions of the issues and to effectively co-opt significant elements of the media, civil society, governments, and institutions in promulgating its own agenda. This Article attempts to detail and dissect that influence, with the aim of restoring nuance and granularity to a critical debate.

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