“Privacy” as Censorship: Fleischer Dismantles the EU’s “Right to Forget”

by on March 9, 2011 · 6 comments

Few people have experienced just how oppressive “privacy” regulation can be quite so directly as Peter Fleischer, Google’s Global Privacy Counsel.  Early last year, Peter was convicted by an Italian court because Italian teenagers used Google Video to host a video they shot of bullying a an autistic kid—even though he didn’t know about the video until after Google took it down.

Of course, imposing criminal liability on corporate officers for failing to take down user-generated content is just a more extreme form of the more popular concept of holding online intermediaries liable for failing to take down content that is allegedly defamatory, bullying, invasive of a user’s privacy, etc.  Both have the same consequence: Given the incredible difficulty of evaluating such complaints, sites that host UGC will tend simply to take it down upon receiving complaints—thus being forced to censor their own users.

Now Peter has turned his withering analysis on the muddle that is Europe’s popular “Right to be Forgotten.” Adam noted the inherent conflict between that supposed “right” and our core values of free speech. It’s exactly the kind of thing UCLA Law Prof. Eugene Volokh had in mind when he asked what is your “right to privacy” but a right to stop me from observing you and speaking about you?” Peter hits the nail on the head:

More and more, privacy is being used to justify censorship. In a sense, privacy depends on keeping some things private, in other words, hidden, restricted, or deleted. And in a world where ever more content is coming online, and where ever more content is find-able and share-able, it’s also natural that the privacy counter-movement is gathering strength. Privacy is the new black in censorship fashions. It used to be that people would invoke libel or defamation to justify censorship about things that hurt their reputations. But invoking libel or defamation requires that the speech not be true. Privacy is far more elastic, because privacy claims can be made on speech that is true.

He breaks down eight problems with this fake “right,” but the third is most on point:

If someone else posts something about me, should I have a right to delete it? Virtually all of us would agree that this raises difficult issues of conflict between freedom of expression and privacy. Traditional law has mechanisms, like defamation and libel law, to allow a person to seek redress against someone who publishes untrue information about him. Granted, the mechanisms are time-consuming and expensive, but the legal standards are long-standing and fairly clear. But a privacy claim is not based on untruth. I cannot see how such a right could be introduced without severely infringing on freedom of speech. This is why I think privacy is the new black in censorship fashion.

Amen, brother. I wish more “privacy advocates” would think more carefully about the tension between their absolutist privacy stances and their loyalties to America’s free speech tradition.

But I won’t hold my breath.

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