The Rise of the Right to Be Forgotten

JUAN OLANO—“Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.” – Ayn Rand

While that may have been the case when it was written in the 1960s, the opposite seems true today, in a civilization increasingly dependent on the internet. Consider the amount of information stored daily about each and every person through their usage of social media, search engines, online stores, online press, and any other service that collects and disseminates information. Whether willingly or out of necessity, nearly everyone participates online, thereby creating a “second self”— a digital persona that can be accessed by virtually anyone from anywhere—that conflicts with Rand’s assumed progression towards privacy.

Recall the last time you applied to a school or a job and were advised to “Google yourself.” You were essentially being told to monitor your second self. That is, potential employers or admissions officers can peek into your second self and make decisions based off of it. Yet, the judgment based off our second self presumes it is an accurate reflection of our actual selves. But, what if someone could not control how they are characterized online? What if they were victims of  “online shaming”? Should they be allowed to remove or edit their second self? To censor certain information about themselves? Should governments recognize a “right to be forgotten” and provide them with avenues of redress?

The right to be forgotten first developed as a subset of “digital privacy.” It arose in the legal community when a Spanish man filed suit in 2009 alleging that a Google search of his name gave unfair prominence to a newspaper item from 1998 that showed he had to sell his property to pay off debts. The European Court of Justice held in his favor, recognizing the legal right to to be forgotten for the first time, and defining it as a person’s “right – under certain conditions – to ask search engines to remove links with personal information about them . . . that is inaccurate, inadequate, irrelevant or excessive.” According to that court, people cannot delete original information from the Internet, but can have search engines remove links to make the information harder to find. The idea is to make certain information (such as an old newspaper copy) as hard to find as it once was for the sake of privacy.

On the other hand, just earlier this month, the Supreme Court of Japan denied a plaintiff’s right to be forgotten after he petitioned Google to remove search results about his criminal record. The court weighed the right to be forgotten against the right to know (about arrests or criminal convictions). Although it held opposite to the European Court of Justice, the case itself is a sign of the increasing awareness of the the issue. The right to be forgotten was also recently acknowledged as a potential right in Canada.

Courts in the United States may soon find themselves facing the right to be forgotten in an internet context. Just this month a revenge porn victim and college student filed suit in Manhattan seeking an order for search engines (Google, Yahoo, and Bing) to delete her full name from searches. She alleged that because of the pornographic video her ex-boyfriend released of them engaging in sexual acts (which has gone viral), she cannot even get an internship. She would “”

If U.S. courts’ previous rulings on the right to be forgotten are reliable indicators despite their differing context (plaintiffs sued news organizations and not search engines), the courts will likely deny the right to be forgotten. These past decisions weigh the first amendment rights of free speech and free press more favorably than the European Union (“EU”) did. Last year, the Second Circuit held that “privacy concerns ‘give way when balanced against the interest in publishing matters of public importance.’” In addition to strong constitutional arguments, statutes such as the 1996 Communications Decency Act “shield[] companies like Google from liability for content posted by third parties” and further weaken the presence of the right to be forgotten in the U.S.

Nevertheless, it is difficult to predict just what will happen in the United States because there are strong advocates at both ends of the spectrum. For example, renown University of Chicago Law School professor Eric Posner calls for a new legal right to “help people reclaim privacy that disappeared in recent years as a result of the Internet.” “Neighborhood gossip” that used to disappear now “follows people everywhere . . . for many years.” On the other hand, some believe acknowledging this right is basically “imposing censorship” and instead believe in the alternative solution of just adding more context to Google results.

Soon the courts may have to design a way to examine this right on a case-by-case basis, or maybe Congress will at last write an online consumer bill of rights that balances all factors, mainly free speech, free press, the right to know, the right to privacy, and the right to be forgotten. Whichever happens, the courts or Congress should take their time to create a factor-based system that helps differentiate between the type of victim likely to merit redress (such as a victim of revenge porn unable to get a job) and the type that does not (such as an individual who merely does not like something said about them online).



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