top of page
Social Media at Law Logo.gif
  • Writer's picturePeter DiSilvio

The Right to Be Forgotten and Other Cosmic Ironies

The right to be forgotten, broadly explained, is the right to request commercial websites that gather and share personal information for profit to remove links to or otherwise erase said information. First recognized in French law in 2010, the right to be forgotten has been widely discussed across the world as the growth of Big Data, the growth of the industry that collects and profits from personal data, has grown unabated in recent years. While recognized by the European Union more broadly in 2014, the right get to be forgotten has yet to be enshrined into U.S. law or to be tested before the Supreme Court.

Europe

In Google v. Spain, the European Court of Justice ruled that the European citizens have a right to request that commercial search firms, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant [1]. The outcome of the ruling was that an Internet search engine must consider requests from individuals to remove links to freely accessible web pages resulting from a search on their name. Grounds for removal include cases where the search result(s) "appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed. If the search engine rejects the request, the individual may ask relevant authorities to consider the case. Under certain conditions, the search engine may be ordered to remove the links from search results.

While many regulations promulgated by the European Union end up being implemented world wide, Google and others have resisted allowing the EU policy to control their global strategy. The EU went so far as to attempt to force Google to delist links abroad but Google was able to defeat them in the Union's highest court.


Regardless, citizens in the European Union have the ability to request the delinking or erasure of data at present. If an organization refuses, the citizen has the right to seek legal remedies with regulating bodies or even court orders.


The United States

While the Right to be Forgotten has not been expressly recognized in U.S. case law or codified into any statutes, there are some cases that can be said to have laid the foundation for it. For example, in the 1931 case of Melvin v. Reid an ex-prostitute who had been acquitted of murder sued a film producer who made a movie depicting the incident. The Court ruled in favor of the former lady of the night reasoning that that "any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation [2].


Conversely, in 1940 in the matter of Sidis v. FR Publishing Corp. a former child actor who had put his fame successfully behind him sued the New Yorker after they drew attention to his attempts to live in anonymity. Here, the Court held here that there were limits to the right to control one's life and facts about oneself, and held that there is social value in published facts, and that a person cannot ignore their celebrity status merely because they want to [3].


"There is opposition to further recognition of the right to be forgotten in the United States as commentators argue that it will contravene the right to freedom of speech and freedom of expression, or will constitute censorship, thus potentially breaching peoples' constitutionally protected right to freedom of expression in the United States Constitution" [4].


However, in a 2014 opinion piece in Forbes titled "Your Privacy Is Now At Risk From Search Engines -- Even If The Law Says Otherwise", columnist Joseph Steinberg argued that "many privacy protections that Americans believe that they enjoy – even some guaranteed by law – have, in fact, been eroded or even obliterated by technological advances." Steinberg called for legislation guaranteeing the "right to be forgotten" noting that existing laws require adverse information be removed from credit reports after a period of time, and that allowing the sealing or expunging of criminals records are effectively undermined by the ability of prospective lenders or employers to forever find the removed information in a matter of seconds by doing a web search [5].


Looking Forward

As big data grows unabated and our world becomes more interconnected, there are going to be more and more data points on all of us. Where you shop, what you look at online, what you buy for lunch, what movies you are thinking of seeing; all of it is being compiled with greater and greater efficiency. We have seen time and time again major advertisers try to use the information to control spending habits and foreign actors attempting to influence elections using the treasure trove of data they have collected. The problem will only continue to grow until U.S. lawmakers take action.

0 comments

Comments


bottom of page