The on-line world is abuzz today with news from Europe’s highest court that Google will have to start removing links to certain information that some judge or bureaucrat decides is irrelevant. Even if it’s true and lawfully posted, the governments of Europe now get to decide what’s suitable to read, case by casegoogle EU right to be forgotten.jpg.

We’re written extensively about this issue, including here in The Right to Privacy on the Web. The issue arose in Europe after a lawyer in Spain decided that he was tired of an old newspaper report of his bankruptcy hanging around for years when people searched his name on the internet.

Where this decision will take Europe in the short term is unclear, but if E.U. governments are serious about stamping things out at Google, they will have to think about whether they want to join the free information bastions of China and Iran and start banning entire websites.

That’s because if an offensively “irrelevant” result on Google’s Spanish site, is made to disappear, anyone in Spain can search on, which is based in the U.S. The result could still appear there, and at last check the First Amendment was still in effect in this country. won’t care a bit about the E.U.’s take on press freedom, whatever Google does with

Instead of this decision today, there is a much more sensible and fair way to regulate old information about people we don’t want hanging around on the internet: don’t make it public.

  • In the U.S., where more information is public than in any other country, millions of records are deemed to be too sensitive and are sealed. Income tax records are fully public in Norway and Sweden but are off-limits in the U.S. Family law records are sealed in many U.S. states. Do you want to see some rich guy’s separation agreement and other divorce filings? In Florida you can, in New York it’s deemed to be a violation of his privacy and they are not available to the public.
  • Mortgage records are open in the U.S., but in parts of Europe they are not. We could easily do the same: make mortgage information as protected as a credit report so that you only get to check someone’s mortgage if they give you permission during a title search or a credit application.
  • If we don’t like the fact that mug shots stay on the web even if the person wasn’t charged or was acquitted, then let’s not make mug shots public unless the person was convicted.
  • We may think that Bernard Madoff’s accomplices should have links to news reports of their convictions rubbed out after 10 years or rehabilitation in prison, or we may like the idea that they should have trouble getting hired at broker dealers when they get out of jail.

One policy isn’t inherently more reasonable than another – it’s just a matter of public preference.

But what would be truly awful would be to let judges or information commissars decide on a case-by-case basis whose mortgage information, mug shot or tax record is “relevant” and therefore public and whose should be off limits.

That’s the place Europe is now headed. The question of information availability now turns into a zoning application: decided on a case by case basis, effectively unreviewable, and open to a heap of corruption.