By: Shivani Patel
You get a text that says, “You’re going to be on Google.” A month later, that message comes true. Your ex has published sexually explicit images and videos of you on the internet. You ask the websites to remove the images and videos, and they do just that. But it’s too late…the internet has done its job and the images and videos are everywhere. Employers search your name on a search engine and guess what pops up? These images and videos…they haunt you for years and you don’t know what else to do.
This is exactly what happened to a woman in New York in 2015.[i] She decided to take matters into her own hands and filed suit to order various search engines to delete her name from their databases.[ii] In the United States, suing a search engine to remove someone’s name is unheard of. In fact, the Communications Decency Act helps protect search engines from liability from third-party content.[iii] It seems unlikely that this woman could win this case. This woman had to suffer, and all because of her angry ex.
While the right to be forgotten is an understood legal right in Europe and many other countries[iv], it is also a right that may not align with certain values in the United States, specifically our First Amendment values. The courts in the United States have struggled with the right to privacy and how it clashes with the First Amendment, and often, the First Amendment wins out.[v] How do we in United States deal with the clash between our First Amendment rights and a potentially necessary right to be forgotten?
- The Right to be Forgotten in the European Union
The right to be forgotten is a right “to erase, limit, or alter past records that can be misleading, redundant, anachronistic, embarrassing, or contain irrelevant data associated with the person, likely by name, so that those past records do not continue to impede present perceptions of that individual.”[vi] This right especially applies to search engines and has become more relevant and prominent as technology has become more accessible to people around the world, as we acknowledge that the internet often stores information permanently, and as it continues to change and shift over time in society.
Tracing privacy and protection of personal information in the European Union, we can see that it has a dark history. “There [is] this misperception that it’s a protectionist response, but the roots are much deeper. We trace them back to World War II and the atrocities of the Nazis, who systematically abused private data to identify Jews and other minority groups.”[vii]
The European Union decided that people may ask search engines to remove their personal data from result pages because “their rights to privacy and protection of personal data override ‘not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.’”[viii] Legal cases ultimately gave the European Union what is known as the right to be forgotten or the right to erasure and gave individuals the right to have search engines remove embarrassing, irrelevant, excessive, damaging, and other privacy-invading information. People in the European Union now have access to this right; however, what does this mean for the United States?
- The Right to be Forgotten in the United States
The United States has a major barrier to the right to be forgotten: the right to free speech which is stronger than the right to privacy in the United States.[ix] The founder of Wikipedia, Jimmy Wales, said it best when he said, “This is not a debate the United States is even capable of entering into. You’d have to repeal the First Amendment – and that’s like a religious artefact – so that’s never going to happen.”[x] Wales feels that this is a cultural gap that has existed for years between the European Union and the United States.[xi] He pointed to the following example: “In the past if you were in Germany you were never worried that some encyclopedia website based in the United States was going to name you as a murderer after you got out of jail because that was inconceivable. Today that can happen…”[xii]
In the United States, the right to privacy can be traced back for years. In a number of cases, courts have determined that privacy interests outweigh free speech/press.[xiii] Even beyond all of that, in 1890, Samuel Warren and Louis Brandeis published an article titled “The Right to Privacy” in the Harvard Law Review and said:
“Recent inventions and business methods call attention to the next step
which must be taken for the protection of the person, and for securing to
the individual … the right ‘to be let alone’ … Numerous mechanical
devices threaten to make good the prediction that ‘what is whispered in
the closet shall be proclaimed from the house-tops.’”[xiv]
Even in 1890, almost 100 years before the invention of the internet, people saw a need for a right to privacy. That need has only become more pertinent and necessary as time has gone on. Technology has made it all the easier to “threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”[xv] The house-tops today are the pages of search engines and social media pages. Warren and Brandeis even touched on this more specifically when they said, “… modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury…”[xvi]
It seems that there are a variety of options as we consider how to reconcile the right to free speech and the right to be forgotten in the United States. The first option is to have one right trump the other right.[xvii] If the right to be forgotten trumps free speech, then search engine results, access to publishers’ articles, and access to links with personal information involving the person using the right to be forgotten would be limited.[xviii] People would still have a right to free speech; there would just be a few limitations on this right while maintaining the right to be forgotten. This is much like what the European Union has adopted. If free speech trumps the right to be forgotten, the right to be forgotten would ultimately go away which seems to be the current approach in the United States.[xix] Having the right to be forgotten trumping free speech would allow for both rights to continue to exist and work together.
The second option is that there is a rebuttable presumption favoring one of the rights over the other.[xx] In this situation, the presumption can be strong, medium, or weak which would lead to different circumstances in different situations. A strong presumption will favor the right and could seem like one right essentially trumps the other while a weak presumption would lead to variety about which right wins overall.[xxi] For example, if we say that there is a strong presumption, we would essentially see the first option; however, parties could try to overcome them. If we say that there is a weak presumption that favors free speech, a party could go to court with a revenge porn argument like the story in the introduction and could try to overcome that presumption which would allow the right to be forgotten to win.
The third option is catalogs. Catalogs means essentially creating a catalog of either factors or situations that would pick a right.[xxii] This option is more like a situation by situation analysis based on the facts. In some situations, the right to be forgotten would win over free speech. A list of factors could also be created on the flip side, laying out when free speech would win over the right to be forgotten.[xxiii] Further, instead of using the catalog to determine which right wins, this approach could be used to create which right has a rebuttable presumption.[xxiv]
The fourth option is a case-by-case method. This option would give the courts, upon a petition from a person to have some of his or her records expunged, the discretion to determine which right wins out for each individual case. In this situation, a list of factors for courts to consider in their decision-making could be created to help guide decisions with the decision ultimately being in the hands of the court.[xxv] Factors could include things like the nature of the case at hand, the age of the information, the parties involved, etc.[xxvi] This is more open-ended than the third catalog options.
The fifth option is to have companies set their own standards and policies on the right to be forgotten. This may be a good approach for countries that do not have a right to be forgotten by law.[xxvii] This would allow companies to address their own specific situations, and it also acknowledges that “free speech does not apply to speech restrictions by private actors,” so this option “may offer a way to strike a balance between privacy and speech without raising any constitutional problem.”[xxviii] This would help avoid many of the free speech concerns that the United States has with the right to be forgotten.[xxix]
In my opinion, the third option is the best option for the United States. It creates clear frameworks, so people know when one right would apply and when the other would apply. The fourth option leaves a lot up in the air and seems to open the floodgates for suits as people may not have guidance as to how things may apply to them. The third option would allow for the legislature or courts to make it clear that cases involving revenge porn, like in the case at the beginning of this paper, would fall under the right to be forgotten. It may allow the legislature or courts to consider various situations. It seems like you could also apply this concept to disclosures for professional licensing or applications, such as college applications, law school applications, Character and Fitness for bar admission, etc. There would be a special category addressing these specific things…maybe we allow these things to be on these applications, even if they have been forgotten or maybe we limit how much information has to be disclosed. Ultimately, the third option leaves the most freedom while providing a framework for people, instead of doing a case-by-case basis like the fourth option. This option allows the right to be forgotten to coexist with the right to free speech.
The implications of not having the right to be forgotten in the United States are countless. They are the real-life issues that affect people every single day. People that run into one small bit of trouble and have that follow them throughout life are negatively impacted. You have situations always popping up.
Should we not be allowed to have our secrets should we want to? Our histories and pasts belong to us, so it seems that we should be able to ask that some things not follow us and negatively impact our lives for years to come. Should “what is whispered in the closet…be proclaimed from the house-tops”?[xxx]
There are ways to reconcile the right to be forgotten and the right to free speech in the United States. It is not an impossible feat. There are a variety of possible frameworks that will benefit thousands of people for the best while still maintain the ever-important right to free speech as it currently exists in the United States.
Warren and Brandeis end their note by indicating that the government and private citizens should have the right to privacy and the same legal protections. These should all be covered under the right to privacy and the right to be forgotten. Now, if that concept was grasped in 1890, it should be grasped today. We value privacy in the United States at certain times. However, we should expand and accept the right to privacy more, and more specifically, we, as a society, should have a right to be forgotten. There are ways to reconcile it with our right to free speech. Moreover, we should be supporting and protecting people in our society through the right to be forgotten. This issue will only become more and more prominent as technology shift, so why is the United States holding off on bringing this right to its people? Forget me, forget me not, forget me, forget me not…I should be able to be forgotten.
[i] Julia Marsh, Revenge porn victim wants US to adopt ‘right to be forgotten’ law, New York Post (Jan. 4, 2017, 7:34 PM), https://nypost.com/2017/01/04/revenge-porn-victim-wants-us-to-adopt-right-to-be-forgotten-law/.
[iv] Data Protection, European Data Protection Supervisor, https://edps.europa.eu/data-protection/data-protection_en (last visited Apr. 21, 2021).
[v] Judith Haydel, Privacy, First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/1141/privacy (last visited Apr. 21, 2021).
[vi] Michael Kelly & David Satola, The Right To Be Forgotten, 2017 U. Ill. L. Rev. 1 at 3 (citing Cecile de Terwangne, The Right to be Forgotten and Informational Autonomy in the Digital Environment, in The Ethics of Memory in a Digital Age: Interrogating the Right to be Forgotten 83-84 (Alessia Ghezzi et al. eds., 2014)).
[vii] Olivia Waxman, The GDPR Is Just the Latest Example of Europe’s Caution on Privacy Rights. That Outlook Has a Disturbing History, Time (May 24, 2018), https://time.com/5290043/nazi-history-eu-data-privacy-gdpr/.
[ix] Rory Cellan-Jones, US v Europe – a cultural gap on the right to be forgotten, BBC News
(May 15, 2014), https://www.bbc.com/news/technology-27421969.
[xiii] Amy Gajda, Privacy, Press, And The Right To Be Forgotten In The United States, 93 WASH. L. REV. 201 (Mar. 2018) (citing Case C-131/12, Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, 2014 EUR-Lex CELEX 62012CJ0131 21 (May 13, 2014).
[xiv] Louis Brandeis & Samuel Warren, The Right to Privacy, 4 Harv. L. Rev. 5 (Dec. 1890), https://faculty.uml.edu/sgallagher/Brandeisprivacy.htm.
[xvii] Id. (citing Ronald Dworkin, Justice for Hedgehogs 329 (2013).
[xxii] Id. (citing Gideon Parchomovsky & Alex Stein, Catalogs, 115 Colum. L. Rev. 165, 168 (2015)).
[xxviii] Id. (citing Christopher Witteman, Information Freedom, A Constitutional Value for the 21st Century, 36 Hastings Int’l & Comp. L. Rev. 145, 227 (2013)).
[xxx] Brandeis & Warren, supra note xiv.