There has been much wailing and gnashing of teeth since the European Court of Justice (ECJ) handed down its ruling this week against Google that has created a so-called “right to be forgotten”.
Free speech campaigners have fretted over the impact the ruling will have on freedom of expression, worrying that a new breed of legal sanitisers will wrongfully set out to cleanse online search results for their clients. The newspapers even report that, according to Google, a number of sex offenders, parliamentary expense fiddlers and rogue directors are among those who have already sought to invoke the right to be forgotten in an effort to wipe the online slate clean so far as their past demeanours are concerned.
Privacy campaigners, invoking the same arguments used by Hacked Off and their illiberal allies who loathe faceless corporations of all sorts (and particularly a corporation as faceless and mighty as Google), are rejoicing. They see it as only a good thing that individuals can determine what is or is not searchable by others about them online.
It’s time for some calm. The reality is that the ECJ ruling will mean very little indeed to EU-based individuals who worry about what Google’s search engines reveal about them.
Why? Because, in simple terms, Google Inc, its search engines and its assets are based in the United States and the First Amendment to the US Constitution is sacrosanct.
Just as it is the case that Americans’ reverence for freedom of expression means that the US Congress and the California legislature both unanimously passed legislation that means that foreign (especially English) libel judgments are not enforceable under US or Californian law, so it is the case that neither the US nor Californian courts will acquiesce in the enforcement of any subsequent ECJ-inspired rulings that foreign lawyers might attempt to enforce in California or the United States.
And if the courts do not defend the First Amendment (which they will), the US Congress will pass an amendment to the SPEECH Act to make it plain that any attempts to enforce foreign judgments to protect the so-called right to be forgotten will likewise be futile.
Unless EU states are prepared to contemplate Chinese-style blocks on Google and other US-based search engines, which I sincerely doubt they are, then Google has nothing to fear from the ECJ ruling.
The judges who handed it down are toothless tigers engaging in the very worst of gesture politics and they have risked exposing their impotence from the bench in the face of one of the great corporations of the world whose servers and assets are based in the mightiest and freest nation on earth.
Donal Blaney is an expert in media law and the Principal and Director of Griffin Law, which operates internationally. Contact firstname.lastname@example.org.