On Tuesday, in a courtroom in Luxembourg, the Court of Justice of the European Union is to consider whether Google must enforce the “right to be forgotten” — which requires search engines to erase search results based on European law — everywhere in the world.
Unfortunately, the chances are pretty good that Google will lose — that the court will order the company to make certain information harder to find. For example, if you are in the United States and you use Google to search for a New York Times article that has been removed from European versions of the search engine, that article will no longer appear in your results.
We’ve come a long way from the 1990s, when the internet evangelist John Perry Barlow, in his “Declaration of the Independence of Cyberspace,” asserted that governments “have no sovereignty” online. These days, many critics call for more state intervention online, to curb the spread of disinformation and other internet-borne harms, and to limit the power of platforms like Google and Facebook to shape political discourse. Those are legitimate concerns, and rightly the subject of debate.
We should be equally worried, however, about the prospect of platforms like Google and Facebook, with their international reach and pervasive role in our lives, doing the bidding of governments around the world.
The “right to be forgotten” dispute is a relatively modest one — a matter of differing priorities between the United States and Europe, which otherwise share the values of privacy and free expression. But in other parts of the world, speech prohibitions can be far more extreme. If the online platforms we depend on — not just Google, but also Facebook, YouTube, Twitter, Amazon, Apple, Microsoft, WordPress, Cloudflare and more — were to globally enforce, say, Saudi Arabia’s blasphemy laws or Turkey’s law against insulting President Recep Tayyip Erdogan, the internet would change beyond recognition.
For now, very few countries are asking online platforms to enforce their national laws elsewhere. And the courts that are considering worldwide removal orders mostly sit in democratic and rights-respecting countries. That should give us some hope for better outcomes in those cases. But it also means that their decisions will carry a lot of weight, and set expectations for other national courts and lawmakers about their own power to make platforms globally remove content.
In Canada, for example, courts could still potentially modify an order, approved by the nation’s Supreme Court last year, requiring Google to globally block search results for websites related to a company involved in a dispute over trade secrets. A federal court in California found the order unenforceable in the United States, and Google went back to the Canadian courts in hopes of a different outcome. (I worked on this case in my previous job as a lawyer for Google.)
Another important case comes from Austria. A court there ordered Facebook to remove, everywhere in the world, a post that called a politician “corrupt” and a “traitor.” That case is also under review by the European Court of Justice.
Governments around the world know that while online platforms have historically enabled the free flow of information, that needn’t be the case forever. Technical intermediaries can just as easily become choke points, shutting down communication on prohibited topics. Governments of any country have at least some leverage to make this happen: National internet service providers can cut off access entirely. In 2016, for example, Malaysia blocked the entire Medium blogging platform for refusing to delete a London-based journalist’s accounts of corruption in the Malaysian government.
That kind of showdown is rare, though. As a matter of both law and international relations, few countries are willing to insist that the rest of the world be bound by their rules. Things should stay that way — particularly among countries whose laws meet international human rights standards, and vary only in interpreting things like the balance between privacy and speech rights.
We would all suffer under a system in which any country could export its own rules through private online platforms. Let’s hope that the European Court of Justice sees things that way.
Daphne Keller, the director of intermediary liability at Stanford Law School’s Center for Internet and Society, is a former associate general counsel to Google.
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