If Google Shouldn’t Apply EU’s ‘Right To Be Forgotten’ Everywhere, Why Should It Apply US DMCA Takedowns Globally?

Last week, Techdirt wrote about Google’s refusal to comply with France’s order to apply the “right to be forgotten” — actually, a right to be removed from search results — globally. Perhaps because the issue seems easy to understand, many have offered their opinions on the rights and wrongs of Google’s move, both for and against. Writing in The Guardian, Julia Powles has provided a good summary of the two main positions. First, without the “right to be forgotten,” the internet would become a “database of ruin“:

Some meaningful rights to delist old, irrelevant or incorrect information from monolithic databases are important, in order to give us a small, imperfect measure of privacy and dignity. They offer a minor speed bump on asymmetric routes of power, like the one that says you have no rights or say over Google’s presentation of search results.

The opposing camp, which includes Jonathan Zittrain, says we must not give in to this natural desire to remove links in this way, because doing so would create a “Swiss cheese internet”:

Even if we might see some merit in Europe’s data laws, Zittrain is not at all happy about them being used to carve holes out of Google search. To counter the database of ruin argument, he says we are creating a “swiss cheese internet”.

The nub of Zittrain’s concern is that the practice of shaping what stays and what goes from the database is hopelessly individualistic. By allowing the delisting of information that is incorrect, outdated or harmful for individuals, who knows what else will follow. It sets us on a path, Zittrain claims, where the internet becomes the lowest common denominator result of what all the world’s countries and courts are prepared to leave behind.

Both of these positions, and countless variations on them, have been expounded many times over the last few days, and Techdirt readers will doubtless have their own views. But Powles goes on to make a new and interesting point that connects the battle over the “right to be forgotten” with the copyright industry’s war on sharing:

Google’s argument that “no one country should have the authority to control what content someone in a second country can access” is appealing, but it is also misleading. Currently, US copyright law is relied on to remove content from Google’s global index, no matter where an alleged incident occurs, and at a rate at least three orders of magnitude greater than partial delistings under data privacy laws. The respective rates of approval are 97% for 345 million copyright requests and 41% for one-quarter million privacy requests, in a comparative period.

Google’s behavior here suggests that it is more important to enforce copyright takedowns globally than to do the same to protect personal privacy. That means the issue of “the right to be forgotten” is even larger than it seems at first sight. As Powles rightly notes:

The complex challenges involved in global enforcement of laws demand us to ask what kind of society we want to live in. Are trademark and copyright law really that black and white? Is it appropriate for global brands to block sites on the other side of the world, which are neither ambiguous in their origin or misleading to consumers, and may engender creativity and meaning in their own right? Can we balance, with equal force, human rights as much as economic rights?

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