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.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. R Richard Schweitzer says

    “Europe comes from a feudal order—a world based on status, ”

    True, but consider *why* the feudal order was based on status.

    The longer view may be that the social order there, as in most places (other than in North America), derived from clan and tribal origins. In the Clan, self and individuality hade meaning only in terms of status within the Clan (and to somewhat the same extent within the family or the extended family). Diminished status diminished the self. That still holds to the degree that the sentiments derived from the Clan orders persist – and they do.

  2. johnt says

    it seems a statist memory hole has been created for the masses, fitting for Europe, voluntary & available self censorship. A touch of dishonesty to this and an opportunity to avoid the consequences of one’s own action, a childs dream.

  3. says

    — 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. —

    That’s a vague and misleading reduction of the philosophical differences between the American and European approaches. Say rather that in the American conception, individual liberty — political freedom — entails individual responsibility as an unavoidable consequence. Those responsibilities extend to the management of one’s personal behavior, including one’s words, for the sake of preserving one’s reputation in others’ eyes. The European scheme largely denies that the individual has any such responsibility, and so offers him a range of methods by which he can avoid it — now inculding the ability to whitewash his past deeds and statements.

    No individual can possibly control his reputation, which exists solely in the minds of others, so the new European scheme is as fatally flawed as its massive welfare state. But just as with their redistributionism and welfarism, it will take a while before they get the picture.


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