An American legal journalists reacts to a German internet privacy ruling:
Wow, Europe just doesn’t buy the American idea that free speech online is sacrosanct. Earlier this month, the European Court of Justice ruled in favor of a “right to be forgotten,” requiring Google to remove links to old and embarrassing articles about debts a Spanish lawyer had long since paid. And now a German court has come down on the side of a woman who wants her ex-boyfriend to delete nude pictures and erotic videos of her from his computer. This kind of claim would never fly in the United States—the First Amendment would trample it. That’s exactly why I’m glad Europe is building a different sort of online universe. Will it prove better or worse to strike a different balance between the competing values of preventing reputational harm and protecting free speech? I look forward to finding out.
There is no right to dignity in the U.S. Constitution, much less the freedom to control the development of one’s personality, or brand. You can sue someone for slander, or the publication of private facts, if defamatory posts go up about you online. But those cases are hard to win (and sometimes even to find out the identity of the poster, if he or she acts anonymously). It is also hard to get any kind of relief if someone has nude images of you even if they took them without your consent. A few states have tried to address the problem of revenge porn, but this is only an initial effort. And it confronts an entrenched American tradition of treating the right to free speech as absolute. We do cherish our First Amendment.
What if the European experiment shows little speech of value to be lost—and a lot of relief from humiliation and invasion of privacy gained? Would we ever rethink our approach in the U.S.? Cases like this one in Germany raise the questions.
We seem to be witnessing the emergence of a Europe-wide legal consensus on the right to be forgotten (or in this case, deleted, since the defendant just had photos of his ex-girlfriend on his computer and had not posted them).
There are a couple of legal issues — antitrust enforcement, for example — in which courts all over Europe join a bandwagon to defend specifically 'European' values against American cultural influence. Which, as this case shows, can be a very good thing indeed! If European courts continue to develop the notion of Internet privacy, Big Data will have to develop programs to implement these rights. Of course they'll protest all the way, but once the model is developed, it can be also be used in the USA, if courts go along. We'll see.