Can there be a “Right to Be Forgotten” Law in the U.S.?
The “right to be forgotten” in the online sphere has recently been protected by the European Court of Justice (ECJ), the highest court in the European Union. According to this court’s recent ruling, Google and other search engines are responsible for removing links to information that people would like deleted from their online “lifescape” when it has been deemed that this information is potentially defamatory, outdated and no longer relevant.
While this decision has already created some complicated repercussions in terms of enforcement (and other issues) in the EU, the implications it could have for online privacy issues are far more complex and contentious in the U.S., especially in light of the growing financial power of the tech industry and the First Amendment. This has led some legal and tech experts to speculate that there could never be a “right to be forgotten” law in the U.S.
Background on the ECJ’s “Right to Be Forgotten” Ruling
The specific case at the center of the “right to be forgotten” issue involved a man from Spain who had filed a complaint that objected to some potentially damaging information associated with him being readily available on the Internet. Specifically, the information pertained to an article published in 1998 that described the auctioning off of the man’s home because he had failed to pay his taxes. As the man contended in this case, this information was outdated, no longer relevant and embarrassing, and he has the right to have it removed so that it doesn’t continue to bear a threat to possibly damage his reputation in the future.
The ECJ agreed with the man, ruling that his request for search engines to remove links to this article was reasonable, as the man has the “right to be forgotten.” Effectively, this ruling, which is binding to all 28 member nations of the EU, has:
• Put the reigns of enforcement into the hands of search engines or the intermediaries of information, raising criticism that the entities responsible for publishing this information should the ones charged with removing it from the Internet
• Engendered questions regarding the definitions of “irrelevant” and “outdated” information, particularly when it comes to information about public figures
• Attempted to give people greater control over their own online “footprints.”
Clearly, the ECJ’s decision in this case has already sparked some controversial and complicated issues that will be challenging to resolve in the coming months.
The “Right to Be Forgotten” in the U.S. Focuses on Protecting Children
In the U.S., legislation related to the “right to be forgotten” has largely focused on protecting children’s rights to online privacy, with states like California paving the path. In fact, last year, the California legislature passed SB 568, known as the “online eraser law,” that has given people the right to effectively erase some of the online data about them when they turn 18 years old. Legislatures in other states, including in New Jersey and Utah, have initiated their own efforts to pass similar laws.
On a national level, the “Do Not Track Kids Act” was proposed last year to give children an “eraser button” for their personal information on the Internet. This bill, which has been sponsored by Sens. Ed Markey (D-Mass.) and Mark Kirk (R-Ill.), as well as Reps. Joe Barton (R-Texas and Bobby Rush (D-Ill.), already has 40 co-sponsors within Congress.
First Amendment, Tech Industry Could Complicate Future Efforts to Give American Adults a “Right to Be Forgotten” Online
While there seems to be a growing consensus that American children should have the “right to be forgotten” when it comes to certain information trailing them after they turn 18, there is far less agreement in terms of online personal information related to adults. In fact, some legal experts have contended that there could never be a law protecting American adults’ “right to be forgotten” because of:
• The fiercely protected right to freedom of speech as defined in the First Amendment
• The snowballing digital economy backed by powerhouses like Google and others that seem to be increasing their focus on data collection efforts (especially when it comes to advertising and personalizing the online user experience).
As the “right to be forgotten” continues to be examined in the tech and legal communities, it remains to be seen how personal information may be affected in the future – as well as what legal protections may be offered when it comes to defamation issues and cases.