“The Right to Be Forgotten” Washes Ashore in the U.S.

New column: “The Right to Be Forgotten” Washes Ashore in the U.S.

https://scpress.org/the-right-to-be-forgotten-washes-ashore-in-the-u-s/

We all make mistakes, take foolish actions, and say stupid things. Most of the time, these errors in judgment are ephemeral: we deal with the consequences—or not—and we move on, hopefully a bit more prudent and wiser.

But in the age of the internet, past indiscretions that once would be forgotten now never really go away. But while we may have little sympathy for public officials and public figures whose failings are revealed after they knowingly subject themselves to public scrutiny, in the modern era these online archives contain information on all of us that we may wish to stay in the past.

In 2014, the European Court of Justice gave citizens of European Union countries a partial remedy for this dilemma. Based of the E.U.’s protections of personal privacy—way beyond any such protection in the United States—the court held that individuals could request that search web sites remove “inadequate, irrelevant or no longer relevant” information about them from their search results. This so-called “right to be forgotten” does not remove the underlying information from the web; it only allows for removal of the search result listing, and only upon request of the individual involved. And the search sites are the ones who determine whether the information meets the criteria for delisting.

The delisting only applies on site targeted at E.U. countries. Thus results need only be removed from google.fr, Google’s website for France, but not its American-targeted site, google.com. An effort by France to get the delistings to apply worldwide was rejected by the E.U. court.

There is consensus that implementation of a broad “right to be forgotten” in the United States would run into the First Amendment problems, since search web sites, like other publications, have the right to determine what content they will include and exclude.

But California has adopted a limited “Erasure Law,” which requires web sites and online services to allow minors to “remove or request and obtain removal of content or information” that they previously posted.  And in 2020 a bill in the New Hampshire legislature would have required news media to update, retract, or correct online articles about a criminal proceeding after an acquittal, dismissal, or finding of not guilty, or be liable for damages for not doing so.  There was a similar proposal in New York in 2017.

In January the Boston Globe announced its “Fresh Start” program, which allows individuals to request updating or anonymization of past coverage of them in the newspaper’s online archive. The same month, the Bangor Daily News announced that it would consider requests to remove stories of old crimes (five years for misdemeanors, ten for felonies) by non-public figures from Google search results for its site. (Articles will still appear in searches done on the newspaper’s own site.)

These come after the Cleveland Plain Dealer began a program in 2019 that allows those whose records of minor crimes have been expunged by the courts to remove their names from archived news stories. The paper recently received a grant from Google to research how to automate the process. The Atlanta Journal-Constitution apparently has a similar program.

A Pew study found wide support for such policies, with 74 percent of U.S. adults saying it is more important to be able to “keep things about themselves from being searchable online” than being able to “discover potentially useful information about others.”

Media ethicists have expressed mixed opinions on these programs. And while they do not raise First Amendment questions as long as journalism outlets impose these policies on themselves, they could inspire government officials and legislatures to try to impose them by law, which would create lots of First Amendment concerns.

 

Strengthened "Right to Be Forgotten" Is Now Permanent in E.U., and Will Likely Affect U.S.

Passage of a new General Data Protection Regulation by the Parliament of the European Union means that "the right to be forgotten," created in a 2014 decision by the European Court of Justice, is now a permanent part of EU law. And the new regulation includes specific language to apply to any website in the world that includes or handles data from EU residents, including those based in the United States.

E.U. Seeks to Take Over the Internet

For a while now I and others have written and spoke about the court decision (summary) earlier this year applying the European Union's conception of the right to privacy, including "the right to be forgotten," to internet search engine results. Now, the European Union is seeking to export the concept worldwide.

The Impact of "The Right to Be Forgotten"

I've written before on the European Union's "right to be forgotten," and the dangers that a European Court of Justice ruling earlier this year applying the right to search engine results poses to the internet.

Today, I was pleased to give a presentation on the origins of the "right to be forgotten" and the court decision, and the implications for the internet both in Europe and here in the United States to the Sports, Entertainment, and Media Law Society at the LSU Law Center.

Limiting Damage of EU Privacy Ruling

Google has began implementing a decision (summary) by the European Court of Justice requiring search engines to honor requests to remove links to online information about individuals that is "no longer necessary in the light of the purposes for which they were collected or processed," under the European concept of "the right to be forgotten." And it has done so in a way that limits the damage to the internet as a source of information.

Excellent Analysis of E.U. Decision

My colleague Mark Stephens, a London barrister, has written an excellent analysis of the E.U. Court of Justice ruling requiring internet search engines to remove links to embarrassing yet true information about individuals who are not public figures.

The title of Mark's commentary in The Guardian, "Only the powerful will benefit from the 'right to be forgotten,'" explains just one of the many problems with the E.U. court's ruling.

Will E.U. Court's Privacy Ruling Break the Internet?

cross posted at the Digital Media Law Project
In 2012, a bevy of internet companies and web sites waged a successful campaign against bills in Congress -- the PROTECT IP Act and Stop Online Piracy Act (SOPA) --  meant to combat copyright privacy. In the face of this opposition, the proposals were dropped (although their legacy survives). One of the major claims by the opponents was that the bills would "break the Internet" by requiring the disabling of URLs and removal of online links to sites that include unauthorized uses of copyrighted materials (although not all agreed with this assessment).