05 November 2016

Obscurity, Censorship and Personality Rights

'The Anglo-American / Continental Privacy Divide? How Civilian Personality Rights Can Help Reconceptualize the ‘Right to Be Forgotten’ Towards Greater Transnational Interoperability' by Karen Eltis in (2016) 94 Canadian Bar Review comments
The European Court of Justice’s much maligned decision in Google v Costeja Gonz├ílez, appears to compel search engines, to remove links to certain impugned search results at the request of individual Europeans (and potentially by others beyond Europe’s borders). Further complicating an already thorny situation is the court’s failure to impart much-needed practical guidance in Costeja.
What is more, Costeja may inadvertently and ironically have the effect of appointing (chiefly American) ‘data controllers’ as unwitting private censors; arbiters of the European public interest. Indeed, the decision may be deemed a culmination of the growing divergence between Anglo-American and Continental approaches to privacy significantly extending beyond the United States, to the United Kingdom.
It further reflects internal normative contradictions within the continental tradition and emphasizes the urgency of re-conceptualizing digital privacy in a more transystemically viable fashion in Europe and beyond.
In light of the above, informational privacy, the following posits, must ultimately be re-theorized in a manner that would presumably obviate – or at the very least palliate – the need for a stand-alone ill-defined and under-theorized ‘right to be forgotten’, as set out at pains in Costeja. It is in essence a procedural right predicated on the impracticable idea that individuals ‘own’ data, rather than a right to their identity itself and the perception thereof. It therefore fails to accord with the long-established civilian tradition of personality rights, which, unlike its common law counterpart, emphasizes personhood not property. In the end, a more robust construction of privacy predicated on protecting identity would allow for a more nuanced balancing of privacy and freedom of expression.