What is a Search Engine? The Simple Question the Court of Justice of the European Union Forgot to Ask and What It Means for the Future of the Right to be Forgotten

Table of ContentsI. Search Engines and the Right to be Forgotten 219II. The CJEU's Right to be Forgotten Ruling 223III. Application of the Term "Search Engine" 226IV. The Data Protection Directive 227V. Personality and Privacy Rights in Europe 229VI. How the Right to be Forgotten Can be Implemented Globally 232A. The Right to be Forgotten Around the World 233B. Proposal For Search Engines to Impose the Right to be Forgotten Internationally 240VII. Conclusion 242I. Search Engines and the Right to be ForgottenIn May of 2014, the Court of Justice of the E.U. (CJEU) jeopardized the fundamental right to free speech in order to protect the individual's privacy rights. In its groundbreaking right to be forgotten ruling, the CJEU clarified the E.U.'s Data Protection Directive (Directive),1 holding that the Directive applied not only to source websites, but also to search engines.2 Many European countries already vehemendy protect their citizens' individual privacy, and this ruling further entrenches this protection. The U.S., on the other hand, prizes the right to free speech above many fundamental human rights, including privacy.3 Because the Directive is now understood to apply to the most basic and easily-utilized medium of accessing information,4 free speech advocates are worried. And while many consider bringing search engines within the Directive's scope to be over-inclusive, the CJEU's ruling may be even broader than scholars initially thought. The right to be forgotten ruling provides only one example of a search engine-Google, the defendant in the case-but its description of a search engine is ambiguous and broad, making it ripe for exploitation. If this characterization remains unrestricted, expanding privacy rights could further restrict rights to freedom of speech. However, the E.U. is unlikely to be so dismissive of the right to free speech.The E.U. enacted the Directive to protect privacy.5 With an emphasis on personal autonomy and an eye toward the rapid technological evolution, the Directive established legal standards for data processing that ensured that individuals could maintain a degree of control over their data and reputation.6Even though the Directive authorizes online content removal in the name of privacy protection, it still considers the fundamental importance of the right to free speech. The Directive limits its purview to include exemptions-for example, for "solely ... journalistic purposes"-to complying with right to be forgotten requests.7 However, since these limitations are confined to specific data uses, they are unlikely to restrain the scope of search engines subject to the Directive's mandate. By identifying specific exceptions, the Directive intends for courts to apply them narrowly.There is a general assumption that a search engine is a stand-alone website dedicated solely to indexing the World Wide Web and providing organized hyperlinks to web pages in response to search terms.8 Web giants like Google and Yahoo are frequently cited examples illustrating this assumption.9 Contrary to this usage, the E.U. Courts and the CJEU Advocates General have adopted a broader interpretation of what a search engine is. They refer to any search feature-even internal ones operating solely within other websites10-linking users to websites based on the user's choice of search terms as a "search engine. …