Recently, the EU made a ruling requiring Google to take down links to incriminating information upon the request of a certain party. If an EU resident requests that they take down embarrassing information, then Google is now required to comply. This does not apply to newspapers.
This ruling pits free speech against privacy. On the one hand, Google argues that they have the free speech right to organize their search engine however they want to. But on the other hand:
The ruling was based on a case brought by a Spanish man against a newspaper and Google. He argued that searching for his name led to two pages originally published in 1998 on the website of the newspaper, La Vanguardia, about his debts and the forced sale of his home. The Spanish Data Protection Agency did not require the newspaper to take down the pages, but it ordered Google to remove links to them.This was a link to a private person who had debts and legal troubles that ended 15 years ago. No reasonable person can argue that this information is relevant now. And yet, when you apply for employment, you are frequently required to sign a statement authorizing the potential employer to investigate your history.
The New York Times Editorial Board concludes:
The desire to allow individuals to erase data that they no longer wish to disclose is understandable. For example, there are good reasons to let people remove embarrassing photos and posts they published on social media as children or young adults. But lawmakers should not create a right so powerful that it could limit press freedoms or allow individuals to demand that lawful information in a news archive be hidden.Both free speech and privacy are rights that are protected under our Constitution. The First Amendment says that Congress shall not infringe on the right to freedom of speech or freedom of the press. But it has often been held that where there is a rule that is narrowly written to fulfill a compelling public interest, then that would be permissible. For instance, you can't lie in court. That is a law that is specifically written to fulfill the compelling public interest of producing truthful and accurate testimony.
The only reason that privacy is not in the Constitution has to do with the English language. Back in those days, privacy had to do with toilet functions, and was not a word to be used in polite society, as Thom Hartmann notes:
The reason is simple: "privacy" in 1776 was a code word for toilet functions. A person would say, "I need a moment of privacy" as a way of excusing themselves to go use the "privy" or outhouse. The chamberpots around the house, into which people relieved themselves during the evening and which were emptied in the morning, were referred to as "the privates," a phrase also used to describe genitals. Privacy, in short, was a word that wasn't generally used in political discourse or polite company during an era when women were expected to cover their arms and legs and discussion of bedroom behavior was unthinkable.The ruling, of course, does not apply to Americans; however, it could have implications down the road. As the NYT editorial notes, there is little direction given as to how far back something has to go before someone could demand that embarrassing information be removed. One possible outcome is that some companies might decide that anyone, including US residents, would have the right to request the takedown of incriminating information. After all, if a policy has to apply to one person, then the only fair thing is for it to apply to everyone. Another possible outcome is a distinction between public and private figures. For instance, if someone is a private figure, they might have the right to protect themselves against events in their past, which would have no bearing on their job performance, from getting them denied a job. But if someone decides to make themselves a public figure, then by definition, they would risk this sort of scrutiny. Paradoxically, the man who was seeking to protect his privacy may have opened himself to much more scrutiny than he would have if he hadn't have filed suit.
It wasn't until 1898 that Thomas Crapper began marketing the flush toilet and discussion of toilet functions became relatively acceptable. Prior to then, saying somebody had a "right to privacy" would have meant "a right to excrete." This was, of course, a right that was taken for granted and thus the Framers felt no need to specify it in the Constitution.
Instead, the word of the day was "security," and in many ways it meant what we today mean when we say "privacy." Consider, for example, the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...."
Similarly, "liberty" was also understood, in one of its dimensions, to mean something close to what today we'd call "privacy." The Fifth Amendment talks about how "No person shall be ... deprived of life, liberty, or property..." and the Fourteenth Amendment adds that "nor shall any State deprive any person of life, liberty, or property...." And, of course, the Declaration of Independence itself proclaims that all "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
And while the NSA was not mentioned in the ruling, it may very well be that this ruling, made against an American company, is blowback against the NSA's spying on our European allies. After all, if the NSA is going to spy on people who are supposed to be our allies, then it is only fair, in many peoples' minds, that the EU take all the steps it can to protect peoples' privacy. If this is the case, then we may see more rulings of this nature in the future.