Escaping your online past: the case against a global right to be forgotten.

-- By MatthieuWharmby - 06 Mar 2015

Introduction

Recently there have been many stories about teenagers committing suicide following the publication of compromising information on the web. To many, it highlighted the potential damages Internet could do by allowing just anyone to communicate private information to a very wide audience.

Against the unwanted dissemination of private information, the European regulators have implemented a “right to be forgotten.” This right was recently applied (in 2014) to force Google to remove private information regarding individual Internet users, at their request. As EU Commissioner Reding announced, "if an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system." In the U.S., the “right to be forgotten” does not exist and it is unlikely to prevail over freedom of expression.

I argue that the "right to be forgotten" is counterproductive, and should not be implemented in the United States. While there are convincing arguments on both sides, the right to be forgotten restricts individual freedom by implying a duty to forget. I will first lay out the E.U. and U.S. judicial traditions, then examine the arguments for a "right to be forgotten," and confront them to their contradictions.

Comparison of the US and EU Approach

Right to Privacy

The right to privacy in the U.S. Constitution mostly consists of the Fourth Amendment’s protection against "unreasonable search and seizure," and the Fifth Amendment’s privilege against self-incrimination. In the EU, the "right to be forgotten," recognized since 1995 (Directive C-131/12, Art. 12), is derived from the fundamental right to privacy inscribed in the 1950 European Convention on Human Rights (Art. 8).

Freedom of Expression

The U.S. Supreme Court tolerates “no law” that restricts freedom of expression; on the other hand, the CJEU (Court of Justice of the European Union) leaves a significant margin of interpretation to the member states. In its rulings, it balances freedom of expression against the "duties and responsibilities" that come with it, making it a relative freedom. The U.S. Supreme Court, however, will not favor a competing interest lest it be extraordinarily “compelling” (e.g., "the sound and fury of guns, spilled blood, or the trespass of property." (Zoller, 2009))

A "right to be forgotten"?

As the right applies in the EU, individuals can request "any information relating" to them to be taken offline. It is irrelevant who published the information in the first place—whether it be the individuals themselves or third-parties like Facebook or Google. In addition, regular publishers as well as search engines must comply with the individual's request, unless they can show a sufficient "interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life." (CJEU case C-131/12 (2014)). Unsurprisingly, the U.S. Supreme Court has so far placed freedom of expression above the right of privacy. In 1989, it held that states cannot restrict the media from publishing embarrassing, but truthful information about others, provided the information was acquired legally. (Florida Star v. BJF.)

The "right to be forgotten" should not be applied in the United States.

Arguments for the "right to be forgotten"

First, there is the argument that the “right to be forgotten” is compatible with the fundamental idea behind freedom of expression itself. Freedom of expression acts as a rampart against totalitarianism by allowing all opinions to be heard, however extreme they are. But there is no reason why freedom of expression should trump the right to privacy where there is no connection to the public interest. Arguably, compromising private information can feed the public debate, for example when a public official’s past wrongdoings are made public. This resonates with the concern voiced by large Internet companies that new right “could . . . be misused by politicians or others with something to hide who could demand to have information taken down.” However, where compromising private information is irrelevant to the public debate, publishing it may only do more harm than good. The “right to be forgotten” includes a balancing approach weighing the sensitiveness of the information against its relevance to the public interest.

The U.S. Supreme Court has also recognized a constitutional right to anonymity (McIntyre). This right allows individuals to hide their identity online, making for one of the Internet’s central characteristics. On the whole, it makes the Internet a freer place. But a right to anonymity does not really mean anything when nothing prevents Internet users from publishing private information about other people’s life. In other words, the "right to be forgotten" must be the flip-side of the right to anonymity. The “right to be forgotten” is about removing information. One can argue that regulations and rulings (like the CJEU’s ruling) are just attempts at imposing more state control over the Internet, leading to a “panopticon-like” system. But no panopticon could exist where individuals can rightfully remain anonymous. There would be no pervasive surveillance complex as individuals would not be able to watch over each other as effectively.

Why the "right to be forgotten" should not be applied in the United States

First, the "right to be forgotten" leaves broad discretion to publishers and search engines to decide what is fit to be published. They can rely on a major caveat to the right to be forgotten: the publisher has no obligation to remove the content if it can justify its journalistic or artistic value. This also means that the publisher may remove content that arguably has no such value. Thus, there are two sides to the coin. On the one hand, a search engine like Google might decide not to remove a particular publication that--despite being embarrassing to someone--might be of some interest to the public. This is perhaps why Google only complies with 40% of requests (LE MONDE, 10/10/2014)). On the other hand, Google might just remove information that it considers of no journalistic value. This gives publishers and search engines a discretionary power of censorship--the power to decide what is fit to publish, and what should be removed. By and large, the "right to be forgotten" makes publishers and search engines the judges of what is compatible with freedom of expression. This is not the kind of decision that should be left to private actors.

Second, the inevitable corollary of the right to be forgotten is the duty to forget. The duty to forget has been particularly strong in totalitarian regimes, and formal or informal duties to forget have lingered for example in Spain (post-Franco), Argentina (after the military dictatorship in the seventies), or France (after the end of the occupation regime). The "right to be forgotten" validates the duty to forget, and runs against what freedom of expression is designed to protect: the availability of truthful information to citizens.

Finally, the "right to be forgotten" becomes more and more obsolete as users realize what they should and shouldn't publish online. So far as the Internet is an experience of individual freedom, its users should realize--and are realizing--that some things are not fit to publish online, and that what gets published might not go away. In this respect, the EU should perhaps take a more preventative approach, and try to educate EU citizens about Internet use rather than leaving freedom of expression into the hands of search engines.

As I said in class, it is a mere juridical tautology in the Hohfeldian mode that the recognition of A's right to be forgotten implies the imposition of B's duty to forget. State imposition of a duty to forget is not compatible with fundamental ideas of freedom of expression. It is in fact fundamentally antithetical to freedom of thought. If you are to present more than mere rhetoric on the other side of that proposition, there must be a responsive argument, which is missing in this draft.