When 2 + 2 Might Equal 5

https://www.nytimes.com/2018/05/07/opinion/google-right-to-be-forgotten-first-amendment.html

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England is the mother country of the United States, and much American law is deeply rooted in that of its maternal forebear. But in few areas do the two systems diverge more than on freedom of expression. “No purpose,” the Supreme Court observed in 1941, “in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Britain had ever enjoyed.”

A decision a few weeks ago by the English High Court illustrates the magnitude of the differences. The European Union has adopted what is generally referred to as the “right to be forgotten,” based on a 2014 ruling of the European Court of Justice. At the heart of that ruling is the determination that Google and other search engines must remove links to content published years before that was harmful to personal reputation but that is now deemed to be “irrelevant or no longer relevant.”

Google and other entities that carry such data, upon receiving complaints from people who maintain that published information about them is no longer relevant, must make an initial determination as to whether to delete the challenged information. If the offended individual disagrees, he or she may go to court to seek an order requiring the deletion. Truth is no defense for Google; lack of continued “relevance” carries the day.

Since the 2014 ruling establishing the “right to be forgotten” Google has received over 2.4 million such requests and has acceded to their pleas about 43 percent of the time. In the recent case decided by the English High Court, the first to be decided in that country, Google declined to do so.

Two British businessmen who had been convicted of crimes brought the cases. Both claimed, in separate cases, that their convictions were no longer relevant. One had been convicted over 10 years before of “conspiracy to carry out surveillance” and served six months in prison. The other had been convicted in the late 1990s of “conspiracy to account falsely” and had been imprisoned for four years.

The judge ruled in favor of the former applicant, concluding that he had acknowledged his guilt, that there appeared to be no risk of repetition and that the published material was “out of date, irrelevant, and of no sufficient legitimate interest to users of Google Search to justify its continued availability.” He ruled against the other applicant, concluding that he had not “accepted his guilt, has misled the public and this Court, and shows no remorse.”

Viewed through American eyes, every aspect of the court’s ruling would have been at odds with the First Amendment. The published material was true. The businessman-former convict who prevailed before the court had been duly convicted and jailed. There was not even a claim that the conviction had been wrongly imposed. In fact, the judge cited the acknowledgment of guilt by the individual seeking to bar Google from including his name as a factor in favor of suppressing that fact from Google users.

An American judge confronted with such a case would probably have responded that the First Amendment would not permit even the beginning of engagement in what is nothing less than official censorship.

Yet the door is not completely closed to the importation into America of the notion that certain truths may not be set forth by certain entities. A state assemblyman has introduced legislation that would create a version of a “right to be forgotten” law in New York. While there seems little doubt that the courts would hold any such legislation to be unconstitutional, the fact that it has even been introduced illustrates the appeal of limitations on the dissemination of older information, however accurate the data may be.

The imposition of a fine against Google in France of $112,000 for failing to remove certain materials from its American servers may pose an even greater threat of enforced silence on American companies. Given First Amendment protections, no American court would be inclined to enforce such an order. But if the ultimate decision of the European Court of Justice is that such a ruling is enforceable throughout Europe, Google will have little ability to resist.

Government action limiting the publication of truthful speech, let alone such speech about judicial proceedings, is nothing less than a form of rewriting history. And as is frequently the case with censorship, it is contagious. In 2015, The Telegraph, an English newspaper, summarized 100 articles it had published that had been removed from search results in the year since the European Court of Justice articulated the right to be forgotten. They included articles about the convictions of individuals of crimes and the acquittals of others; various investigations, arrests and litigations; the conduct of police officers, teachers and other employees; and a wide array of conduct that had been deemed newsworthy by the newspaper and the publication of which had not been held to violate any British law.

The dangers of one generation suppressing information about events of a previous one have not been limited to the imposition of content restrictions on Google. The same restrictions have been applied to online copies of newspapers that published truthful articles years before. In Belgium in 2016, for example, a superior court ordered a newspaper to delete from a 22-year-old article in its online archives the name of the driver who was in an accident that resulted in two deaths. That censorship of speech was the natural consequence of requiring older facts to be forgotten.

The appeal of erasing certain facts is understandable. But the danger of allowing governmental suppression of truth is real. One need not envisage a dystopian world to recall Orwell’s enduring warning that “freedom is the freedom to say that two plus two make four.”