The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime to combat copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by granting rights of erasure, or delisting of personal data, about EU individuals under certain circumstances. Effectively, the EU placed search engines—mainly Google currently—as a judiciary, tasked to balance different fundamental human rights. This privatization of the judiciary represents a new paradigm in legal systems and possesses vast global ramifications, which must be further scrutinized. This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of the quasi-judicial roles played by search engines prior to the new EU rights regime and compares them to their new judicial role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; explores whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. This Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insist on adjudicating search engines, they must also restrain their judicial power and provide adequate safeguards for society in the form of transparency and proper oversight on both their removal procedure and decisions.
Eldar Haber, Privatization of the Judiciary, 40 SEATTLE U. L. REV. 115 (2016).