The ironic result of the Federalists' efforts is that the increase in national power could actually increase overall liberty for the country.
A Liberty Society versus a Status Society
The European Court of Justice this week declared “a right to be forgotten,” basing its decision on an EU privacy directive. Consequently, in certain circumstances, Google and other internet providers have had to delete unflattering information about people. In the European court case, a Spanish businessman did not want others to read old notices showing that he had once been delinquent in his debts.
While the scope of this decision will be debated, it did not take long for some to take advantage of it. First in line were a pedophile who wanted to expunge information about his crimes and a politician who did not want future voters to know about his embarrassing behavior. These supplicants may be foolish: the press reports are likely to remind everyone of their malefactions, even if the reports, too, can be scrubbed from the internet. But if the court’s holding stands and it not reversed in subsequent European wide legislation, the routine excise of damaging information will happen without comment, even if the information is true.
The decision is interesting on a variety of dimensions. First, it reminds us directly that the so-called right to privacy in this context is inseparable from the right of an individual to present a misleading image to the world. That a neighbor is pedophile, that a politician is a boor, or even that a businessman was once a deadbeat are all potentially important bits of information. While it is in the interest of these people to airbrush and polish their reputations, it is not in the interest of those who deal with them.
Although some people may give undue weight to unflattering information—to the drunken episodes of youth or hasty comments under pressure—the too easily offended and intolerant will then lose on valuable employees or useful contacts. We should let spontaneous order regulate information rather than the government. Fortunately, our Constitution protects spontaneous order of information exchange though the First Amendment.
Second, this decision is likely to cause more trouble for the EU. Already some in Britain see it as blow against their own traditions of freedom of expression. Decisions taken by EU bureaucracy and interpreted by justices of EU Court, almost all of whom are foreign and all of whom are unknown to the citizens of the various EU nations are unlikely to gain legitimacy within all member states. The result is more fuel for the fire of Euroskepticism that is engulfing the European project.
Third, it is interesting to think about the reasons for the strong divergence between the United States and EU on these information issues. One should not dismiss anti-Americanism as part of the explanation. Internet providers are largely American corporations and their practices may seem to some in Europe as just the intolerable impositions of another outpost of the American empire.
But more importantly, the divergence reflects our different foundations. The United States is a nation founded on certain principles of liberty—principles that were tarnished by slavery at the Founding and are threatened by an ever bigger state today—but constitutive principles nevertheless. Europe comes from a feudal order—a world based on status, once controlled by the church and aristocracy. In the modern era, control of status there has been conferred to the individual. The right to forget expresses a structure where individual status takes precedence over individual liberty.