Germany recently vowed to investigate Mark Zuckerberg and Facebook for failing to suppress hate posts just as Google and later Facebook itself announced that they will take respective aim at so called ‘false news’ sites following the US elections. And so it came to be that private U.S. companies are very reluctantly but surely stepping into the role of international arbiters of free expression, let alone privacy.
The post-war Human Rights framework, which includes Canada’s Charter of Rights, was devised with government action in mind- as a bullwark against government abuses. The unspeakable atrocities perpetrated during the Holocaust in what had been considered a “democracy”, at least procedurally speaking, evidenced the appalling moral failings of legal positivism and sparked a re-conceptualization of democracy. It effectively shifted the focus from the procedural to the substantive aspects of democracy.
This reexamination ushered in what Lorraine Weinrib eloquently deems “a new constitutional paradigm.” Plainly put, a conception of democracy limited to majority rule was discredited and substituted by the view that it is was necessary to predicate the legitimacy of laws on their comporting with preset values of the highest order within the hierarchy of norms. In Canada, the Charter accordingly “sets forth ‘precommitments' that restrict government action.”
The European Court of Justice’s much maligned decision in Google Spain SL, Google Inc. v Agencia Espaňola de Protectión de Datos, Mario Costeja González handed down in May of 2014, appears to compel search engines (most notably Google, which it deems a “data controller”), to remove links to certain impugned search results at the request of individual Europeans (and potentially by others beyond Europe’s borders). It so held by virtue of the “right to be forgotten”, recently enshrined in article 12 of the revised 1995 European Data Protection Directive 95/46/EC. Further complicating an already thorny situation is the court’s failure to impart much-needed practical guidance in Costeja. More importantly perhaps, the decision underscores the right to be forgotten’s divisive character across common law/civilian lines that now extends beyond the United States.
What’s more, Costeja may inadvertantly and ironically have the effect of appointing (chiefly American) “data controllers” as unwitting and ill equipped private censors; arbiters of the European public interest and beyond.