Draft #2 - Escaping your online past: the case against a global right to be forgotten.

Draft #1 - Escaping your online past: the case for a global right to be forgotten.

-- By MatthieuWharmby - 06 Mar 2015

Introduction

Recently there have been many stories of teenagers committing suicide following the publishing 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 the sacrosanct freedom of expression.

However, the “transnational” nature of the Internet calls for harmonized regulations. I argue that the “right to be forgotten” could, and should be implemented in the U.S. It does not fundamentally oppose the basic ideas behind freedom of speech and freedom of expression; what is more, it puts in practice the constitutional right to privacy and its corollary, the right to anonymity.

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.

The "right to be forgotten" can and should be applied in the United States

There are relatively convincing arguments against the “right to be forgotten.” First, this right is very hard to enforce (Google only complies with 40% of requests (LE MONDE, 10/10/2014)). Indeed, there is 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. Some publications are on a thin line, and a third party (e.g., a judge or an arbiter) would often have to decide where it falls. A second argument is that the right to be forgotten stands against the freedom of expression, a rampart of Western democracies against totalitarianism. Could it just be yet another attempt to better control the Internet, in a panopticon-like perspective? The judiciary, and individuals engaging in “private censorship,” would have the upper hand on what is fit to publish and what is not.

However, 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 anonymity has to be the flip-side of the right to be forgotten. 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.