From a recent op-ed:
This month’s bombshell decision from the European Court of Justice pronouncing a “right to be forgotten” on the Internet was couched as a principled stand for digital privacy. Looking closer, however, one could see a double standard at work:
The enormously expensive effects of the decision fall squarely on the shoulders of search engines based mostly in the United States, while the European players left the courtroom free of obligation. The courage of the court’s convictions, it seems, applies only outside the borders of the European Union — a result that, while convenient in the short term, carries ominous implications for Europe’s future.
...
Most glaring is the illogical selectivity of the ruling. While the court required Google to remove the link, it let the Spanish newspaper off the hook, meaning the material that actually violates the lawyer’s right to be forgotten is allowed to remain on the Internet. The result makes no sense. If a store at the mall is selling banned products, the problem isn’t cured by removing the mall directory.
By handing down different fates to Google and the newspaper, the court is having its cake and eating it, too — standing up for privacy, only so long as the burden of that stand lands outside the continent.
In the long term, however, the court’s approach could cost Europe severely in lost investment and innovation.
Investors and tech entrepreneurs will surely take note that the cost of providing information over the Internet in Europe has just skyrocketed. Google and other search engines not only face difficult removal decisions, but they must also build massive systems to handle removal demands. If foreclosure notices qualify for deletion, that alone could account for millions of requests, to say nothing of unfortunate karaoke performances and Halloween costumes.
While Google may have the resources to forge on in Europe, tomorrow’s Google or Facebook or Tumblr may not. It isn’t difficult to imagine start-ups simply forgoing a European presence, given the high cost of doing business there. It’s a dire consequence, but by creating special rules that apply only within the European Union, the continent has set itself on a path toward cutting itself off from the global community.
So there's a disparate impact on U.S. service providers. Is that enough to find a violation? (Presumably we are in GATS-territory here -- I'm not sure what the relevant commitments are).
And if there is a violation, is there some justification for it? Public morals, perhaps?
