Assessing the Right to be Forgotten

Lyons_Daniel by Daniel Lyons

Heads Up 

From its inception the Internet has been disrupting business models, as once-ubiquitous brands like Blockbuster, Borders, and Encyclopedia Britannica can attest. But as more of our activities move online, society is beginning to realize how it can disrupt individual lives as well. In 2013, the tech world watched in real time as an ill-advised tweet to 170 followers began trending worldwide and cost 30-year-old PR director Justine Sacco her job while she flew from London to Cape Town, oblivious to the firestorm she had ignited below. More recently, the hack of the adultery facilitating website Ashley Madison has revealed financial information, names, and intimate details about millions of users online. Our lives increasingly leave digital fingerprints that can prove embarrassing or damaging when revealed on the network.

The “Right to be Forgotten” is the European Union’s attempt to smooth these rough edges of cyberspace. The term originated with Mario Costeja Gonzalez of Spain, who defaulted on a mortgage in 1998. To foreclose on the property, the bank dutifully published a notice of default in Costeja Gonzalez’s local newspaper and its online companion. Because Google indexed the site, the notice featured prominently in search results for Costeja Gonzalez’s name, even years afterward. Embarrassed that his default was among the first facts the Internet recited about him, Costeja Gonzalez sued both the paper and Google under the EU Data Protection Directive, which governs the transnational flow of personal information in EU countries. He alleged that the notice infringed on his right to privacy and requested that the companies delete them.

The European Court of Justice (“ECJ”) largely agreed, at least as to Google. Deciding the case on laws governing privacy and protection of personal data, the court explained in a decision dated May 13, 2014, an individual should have the right to request that a search engine remove links to information about an individual that are “inadequate, irrelevant or no longer relevant, or excessive.” Importantly, the individual need not show the revelation of the information is prejudicial, because one’s right to privacy should override a search engine’s economic interests in listing search results. But the court was careful to note that there could be an exception if the individual’s right to privacy was outweighed by the public’s interest in having access to the information in question.

The Costeja Gonzalez opinion addresses an important digital-age problem. It is exceptionally easy to post false, misleading, or simply embarrassing personal information online, and once that information is posted, it is exceptionally difficult for the subject to remedy the situation. Costeja Gonzalez’s embarrassment at a decades-old foreclosure may seem trivial. But the same dynamics plague countless others like Ms. Sacco who are forever tarred by a momentary lapse in judgment. It also affects wholly innocent victims whose private details are posted online, such as the subjects of so-called “revenge porn” sites.

Such incidents illustrate the dark side of the information revolution. The genius of the Internet is its ability to reduce information costs. Any information can be reduced to a series of 1s and 0s, replicated, and transmitted anywhere around the world, instantaneously and virtually without cost. This makes it an exceptional tool for communication and learning. But it can hurt those whose self-interest depends upon controlling the flow of information. Dictators have been hobbled by the Internet’s ability to perpetuate ideas and information while connecting underground resistance groups. More benignly, record labels and movie studios have fought a decade-long war against online piracy. What copyright is to Universal, privacy is to the individual: a right to determine if and when certain information becomes public. The Right to be Forgotten is an attempt to force the Internet to respect these rights, by regulating one of the few bottlenecks in the Internet ecosystem: search engines that guide users to information online.

But the ECJ decision is an unworkable solution that risks doing more harm than good. First, the decision applies only to search engines, meaning the information in question is never actually “forgotten.” Google must suppress links to Costeja Gonzalez’s foreclosure notice, but the newspaper itself remains free to leave the notice available online. Second, the court’s standard is astonishingly vague. The decision relies upon Google and other search engines to determine whether a particular link is “inadequate, irrelevant…or excessive,” and if so, whether the “public interest” nonetheless requires the link to remain posted. The court envisions Google analysts assessing the harm that each item causes to the claimant, and carefully balancing that harm against the public’s right to know a particular fact. In reality, Google faces liability for denying legitimate takedown requests but not for granting frivolous ones. This means that the company is likely to err on the side of granting most requests rather than evaluating each request individually—especially when one considers the cost of evaluating potentially millions of such requests each year. Numerous commentators have criticized the similar selection bias evident in the Digital Millennium Copyright Act copyright takedown regime under US law, leading to the removal of a significant amount of non-infringing material.

More generally, the Right to be Forgotten decision raises broader questions about an Orwellian power to distort history. Unsurprisingly, media organizations are some of the decision’s biggest critics, as they fear individuals will misuse the process to sanitize their pasts. There is some evidence to support this concern: among the first claimants was a British politician seeking to hide his voting record from the public and a convicted sex offender who wants his status kept hidden.  In Massachusetts, it runs counter to the current push for broader public access to court proceedings, particularly in cases involving police officers and other public officials charged with criminal offenses.  In this sense, the EU decision is only part of a broader social conversation about selective disclosure, which also includes the ethics of photoshopping models, contracts prohibiting users from posting negative reviews online, and the use of social media to present idealized images of ourselves online. As the merits of the “Right to be Forgotten” are debated in the United States, it is important that any dialogue, as well as any proposed solutions, carefully balance the rights of both the individual and society to open, accurate, and fair historical information.

Daniel Lyons is an Associate Professor (with tenure) at Boston College Law School, where he specializes in telecommunications, Internet law, administrative law, and property.

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