Responding to the ‘right to be forgotten’

As we know, huge issues face the European Union: economic, geopolitical and regulatory. I want to speak about the regulatory issues, which seem of most relevance to lawyers. As I have mentioned before, there is a group of transnational problems with which the EU struggles to deal, which need a worldwide response if they are to be completely effective.

The problems are varied, but share a common feature – that the nation state cannot deal with them alone. For instance, there are bankers’ bonuses (which the banks keep saying that they can do nothing about so long as other markets elsewhere in the world do not cap them), efforts to combat climate change (which vary substantially from developed to developing countries), and – a different order of problem – the financial transaction tax (which the UK has tried to stop).

This struggle is best highlighted by the fierce arguments which have erupted in the blogosphere and elsewhere on the pros and cons of the recent European Court of Justice decision on the right to be forgotten by Google. This is a Big Data problem, where internet giants challenge the effectiveness of nation states.

The views on the Google decision are divided, not surprisingly, into opponents and supporters. Those opposed say: free speech has been trampled upon, a paedophile’s charter has been created, the market will get around the decision by basing search engines outside Europe, and innovation has been stifled. Those who support the decision say: Big Data needs to have some controls, a free market in information has turned citizens into identities decided by private companies, someone needs to start somewhere in regulating the internet.

Is there a primary response by lawyers to these issues of taunting gaps in regulation? Since lawyers are also citizens, we will have as many private views for and against as any other group. And I realise that as individual lawyers - for instance, if we act for Google or the Spanish complainant - we will have different interpretations of the details of the law. But I am here speaking about a collective response to the decision as a whole in our capacity as lawyers – to the direction of the decision, and not to the detail of this or that interpretation.

I propose that, in our capacity as lawyers, we should have a natural bias towards one particular side. Surely we must favour regulation of the internet, to ensure that there is a system in place which grants each side - whether Big Data or private citizens - the ability to enforce their basic rights.

Someone has to start somewhere. As lawyers, I believe we should welcome regulation of a wild market (or maybe, more accurately, a not fully regulated market), not for the sake of regulation itself, but to ensure fairness, access to rights, and the rule of law.

Until now, solutions to knotty questions of privacy and free speech on the internet have in the main been decided not by the law nor by the courts, but by the commercial interests of the huge operators. Trial by battle and by ducking-stool are long gone; trial by international commercial might and by slipping between jurisdictions should also go.

That is why the recent Google judgment is significant. Some of its opponents say that it achieves nothing because, applying just to Europe, it merely encourages search engines to find a more favourable forum: ‘So long as all the countries in the world (or at least our main competitors) do not introduce it simultaneously, people will just forum shop and go to countries where the particular activity is permitted; we are harming ourselves to no good effect.’

Of course, if everyone says that forever, nothing will change. Someone has to take the first step. From my point of view, the main question is not whether the court of justice has achieved the right balance in the Google decision, which is a complex call, but that someone in a position to do something about it has at last drawn up an initial template for rights and duties in a sector without full regulation.

As lawyers, we should welcome that. The same should be true of some of the other areas I have mentioned. There will doubtless be cases of abuse by criminals, avoidance by huge multinational interests, and exploitation by those jurisdictions which do not (yet) take a similar line.

In my mind, that is outweighed by the advantage of a first stab at a settled framework of rights and duties. It is good that an institution able to enforce its decision across several important countries has drawn up some standards.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs