Law in the Internet Society

Increasing Importance of the Right To Be Forgotten

-- By KjLim - 03 Jan 2018


You would not want a picture of yourself partying at a club to show up on Google search when you prepare for job interviews. Even if you delete your pictures from your own social media account, a quick Google search would find them from your friends' account or web scraping sites. The situation can be more serious when it involves your long-ago bankruptcy records, or a gruesome picture of your deceased daughter in a horrifying car accident.

Just as we should remain alert to the stealth gathering of personal information by tech giants, we should also fight to protect our personal information that is easily accessible on the web through search engines. Here, I discuss the so-called Right to Be Forgotten with which individuals can force search engines to remove links to certain personal information. Such a right has recently been developed in Europe where personal privacy has often been viewed as more important than freedom of speech and the press or the public’s right to know, and I argue this right should also be adopted in the U.S. where freedom of speech and the press is often considered more important than personal privacy.

Europe's (so-called) Right To Be Forgotten

In 2014, the highest court of the European Union ruled that Google must comply with requests from individuals to remove links that might cause privacy concerns. In the ruling, the European Court of Justice held that Internet search engines must respect an individual’s “right to be forgotten” and may be forced to remove links to search results that are “inadequate, irrelevant or no longer relevant”, even if the information is accurate and lawful. The case the ruling was based on was brought by a Spanish lawyer Mario Costeja Gonzalez in 2010 -- he claimed that Google’s search results of his name provided links to a 1998 newspaper notice of his bankruptcy and property auction to pay off his debts. Since his financial difficulties had long been resolved, Mr. Gonzalez wanted Google to remove the links to the newspaper notice because the information therein was no longer relevant. The highest court of the European Union agreed with Mr. Gonzalez (it held that the newspaper itself did not have to remove the article on its website).

U.S. Should Also Adopt Right To Be Forgotten

In light of this development, I believe that the Right To Be Forgotten should also be adopted in the U.S. The consequences of inadequate/irrelevant information on search engines such as Google are becoming more and more serious for private individuals who have no recourse to remove such information. It is true that protecting such a right could undermine the freedom of speech/the press. However, since our society is becoming increasingly dependent on the Internet and search engines, search engines now provide access to private information at a scale/with easiness that no other media/tools in history have provided. Such great accessibility alone provides a justification for the right to be forgotten, because the easier it is to access inadequate/irrelevant information by more people, the more damage it does to individuals. In other words, unlike any other media/tools in history, search engines can do more serious damage to more people, more frequently, and more easily, all of which provide a sufficient ground for a competing right against search engines' freedom of press/speech.

A case in point is the legal battle Mr. Catsouras from California had to fight in 2007 in order to remove from the internet gruesome pictures of his daughter fatally injured in a car accident. The manner of death was so horrific that Mr. Catsouras wasn't even allowed to identify his daughter's body, but soon after the accident, the pictures of his daughter were circulating on the internet. It was later found that Highway Patrol employees who took the pictures shared them without authorization with friends on Halloween. The pictures then spread across the internet quickly. When Mr. Catsouras tried to remove the pictures, it was almost impossible to take them down from every webpage that hosted them, and, more importantly, he did not have means to force Google to remove search results that link to those websites when people searched keywords such as the daughter's name, or "decapitated girl". Had he been able to force Google to do so, it would have been much easier for him to limit public's access to the pictures. The damage to his life in this case is greater than the benefit the public derives from Google's linking to the pictures, and warrants stronger protection for individual privacy.

Search Engines Are Not Mere Intermediaries Anymore

Given our society’s increasing reliance on them, search engines are no longer mere intermediaries between reader and publisher, and need to be held accountable for the access they provide. A claim that search engines should not be forced to remove certain links because they are mere intermediaries conveniently ignores the fact that search engines are often tailoring search results for users or provide search term suggestions. These active user interactions on the part of the search engines and the increasing reliance of our society on them should lend support to the notion that search engines are no longer mere intermediaries. Furthermore, even if they are in fact operating as mere intermediaries, I do think they should be required to take a greater responsibility.

Additionally, I do not believe adopting the right will undermine press freedom and free speech to the extent that will outweigh privacy concerns. Adopting the right does not mean search engines would need to proactively censor what to link or not (which could seriously undermine press freedom/free speech), but adopting the right would give individuals at least some resource to remove damaging, inadequate, and/or irrelevant information. Surely the right to be forgotten should be balanced against press freedom and free speech and needs to be developed within reasonable scope, but the question of whether it should be adopted is clear to me.

The draft ignores the reason compulsory deindexing cannot happen in the United States: the First Amendment. To make the argument at all you must meet the obvious objection, not some set of straw objections instead. Whatever imaginary legal standard you devise, of which there are several, all balancing tests, the actual doctrinal limits are evident and do not involve any of the elements you invent. Discussion of Miami Herald Publishing Co. v. Tornillo and its progeny is specifically necessary.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

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r2 - 31 Mar 2018 - 19:38:42 - EbenMoglen
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