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Is the 'Right to Be Forgotten' Coming to America? Is the 'Right to Be Forgotten' Coming to America?

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Is the 'Right to Be Forgotten' Coming to America?

Free-speech concerns abound when users are allowed to erase the Internet.



Europe's highest court ruled Tuesday that Google must allow its users to delete links about themselves that they find embarrassing, outdated, or unsavory—a wide-reaching judgment that will affect other search giants and potentially social-media sites as well.

The court determined that European privacy laws grant a person the right to have certain links containing private information expunged from a search query, even when they are lawful. Because the search of a person's name displays what can be considered a personal profile, that information should be subject to some personal privacy protections. Google and its brethren, therefore, hold some responsibility for the content they display.


Backers of the "right to be forgotten" quickly hailed the decision. Viviane Reding, the European commissioner for justice, trumpeted the decision on Facebook as "a clear victory for the protection of personal data of Europeans."

The ruling, while surprising to some legal observers, follows years of bold attempts by the Europe Union and other countries, such as Argentina, to usher in more digital privacy protections, even as the Internet becomes a place where most people are willing to share ever-increasing amounts of personal data on the web.

So, is the right to be forgotten coming to America?


While limited forms of such a "right" do exist in some states, such a sweeping, carte blanche standard is unlikely anytime soon, if a chorus of free-speech evangelists are any indication. Jeffrey Rosen, a law professor at George Washington University, took to the Stanford Law Review in 2012 to call the right to be forgotten the "biggest threat to free speech on the Internet in the coming decade."

Rosen's argument centers on the idea that America's cherished free-speech principles ward against such data deletion, and that the right to be forgotten is a veiled form of censorship that could allow for all sorts of abuses.

Rosen explains (emphasis added):

In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizes le droit à l'oubli—or the "right of oblivion"—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone's criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor's Wikipedia page.


Put more plainly, Europe has adopted formal rights to privacy, while the U.S. has always been more ambiguous on the issue. Our Constitution lacks any formal declaration of an innate right to privacy, meaning such matters are often left to the states.

Rosen and others additionally point to the way American jurisprudence applies different privacy standards to private and public entities. Should an elected official prone to viral gaffes (the comparisons are infinite, but picture an American version of Toronto Mayor Rob Ford if it helps) be allowed to scrub the Internet of compromising photos from a recent night out? Does the public interest in having access to intimate details of that official's life supersede privacy concerns? Celebrities and politicians possess looser privacy protections in the U.S., and that nuance further complicates any right to be forgotten rules.

Google and its fellow tech titans, whose business models mean they have no interest in playing censor, are no stranger to privacy challenges. Tuesday's decision by the European Court of Justice in Luxembourg marks just the latest example of the profound legal questions the rapidly expanding digital world presents.

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Whatever the results, the Internet is still a place where just about anything can be found if someone looks hard enough. And that's true whether the U.S. adopts the right-to-be-forgotten rules or not.

This article appears in the May 13, 2014 edition of NJ Daily.

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Love it - first thing I read in the morning."

Amy, VP of Communications

I read the Tech Edge every morning."

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