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Should the 'Right to be Forgotten' be Reviewed by an International Court?

July 24, 2014 in Economics

By Simon Lester

Simon Lester

A few weeks ago, the European Court of Justice (ECJ) issued a decision regarding an individual’s right to have negative information about him or her removed from internet search engines, such as Google. Privacy advocates and business groups have debated the merits of the ruling, but there is a larger issue at stake here, related to another prominent policy debate: Investor-state dispute settlement (ISDS). If the Transatlantic Trade and Investment Partnership (TTIP) were currently in force with ISDS, Google could challenge the ECJ ruling before an international tribunal. It is this aspect of ISDS — its international constitutional elements – that should be at the core of the debate.

The actual ISDS debate, unfortunately, is much less substantive. Business groups talk about ISDS as necessary for, and intended to promote, foreign investment. In reality, the evidence on this point is mixed at best. Many studies show no correlation at all between ISDS and investment flows, and investment continues to boom in countries such as Brazil, which has no such treaties in force, and China, which has no treaty with the US or EU.

The questions surrounding the investor-state dispute settlement are not about “corporate profits” or “promoting foreign investment”, but about the role of international courts in global governance.”

On the other side, critics obsess about “corporate profits”, and claim that lost profits are enough to trigger a complaint. But that is not really how these agreements work. Certainly, if a government action results in lower profits, a company might consider whether an ISDS claim against that action is possible. However, you cannot assert lower profits as the basis of such a claim. The rules are more nuanced than that.

The actual system works like this, as applied to Google’s case. The rules in these international investment obligations tend to offer broad and general protections, similar to those seen in domestic constitutional or administrative law. For example, one such rule is that foreign investments must be provided with treatment that is “fair and equitable.” Google could use that rule as follows.

In the ECJ case, the complainant, a Spanish citizen, was upset about a negative article that had appeared in a Spanish newspaper. But the ruling did not force the Spanish newspaper to take down the article. Rather, it compelled Google to remove the article from its search results and set up a general process for removing such …read more

Source: OP-EDS

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