Fight over sex video shows why “right to be forgotten” laws are a bad idea

Big Brother is watching you

In 2008, tabloids in Europe published pictures and grainy video of Max Mosley, the former head of Formula One racing, cavorting in a sadomasochistic romp with five German-speaking prostitutes. The video, which a U.K. paper described as a “sick Nazi orgy,” caused a sensation.

Five years later, after winning a libel suit over the “Nazi” epithet, Mosley is back in court in Paris where he is attempting to force Google to purge all search references and images from the video. As the Wall Street Journal reports, the case is shaping up to be a test of how far European privacy law should extend.

At its base, the case is about the “right to be forgotten” — the idea that our mistakes should not automatically haunt us on the internet for the rest of our lives. The idea is attractive (who among us hasn’t made a mistake we’d like back?), but the Mosley case shows how such a “right” would likely work in practice.

If Mosley gets his way, the case will be less a triumph for privacy than a “right to purge history” for the rich and connected. Recall that the racing executive is not a shy private citizen, but a very public figure whose behavior the press has a legitimate right to scrutinize. This includes his German-themed hooker romps.

On a personal level, Mosley’s desire to purge any whiff of Nazi is understandable; the man has struggled all his life to escape the shadow of his father, who was the head of the U.K. Fascist party and who had Hitler and Goebbels as wedding guests. But this gives Mosley no more of a right to melt down search results than it does a right to burn books he doesn’t like.

Powerful people in Europe, including Mosley, already wield a considerable club over the internet in the form of libel laws that make it easy to bully or bankrupt critics. If the Paris court grant the right to remove search results, the outcome will be more censorship, not more privacy. (In America, Google and Bing also face court-ordered search removal requests but the companies can ignore them).

Fortunately, it appears unlikely that Europe will adopt a sweeping “right to be forgotten” anytime soon. An advocate at the European Court of Justice, the continent’s highest legal authority, has already issued a preliminary opinion siding with Google in a different case about the same issue. Meanwhile, as my colleague David Meyer has noted, the advent of big data means that a “right to be forgotten” has become a practical impossibility in the first place.

Does this mean our mistakes should live on the internet forever? Not necessarily. But, for now, courts and lawmakers will have to resist the temptation to let powerful people ban search results, and look instead for other ways to balance free speech and privacy.

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