The Right to be Forgotten

By Kevan W.

   To what extent does an individual’s right to personal privacy extend to the Internet? The European Union has approached that issue with the intent of broadly accommodating an individual’s right to privacy, even allowing an individual to have the power to remove personal information from the Internet. Such a power, referred to as “the right to be forgotten”, would allow citizens of Europe to force Internet sites such as Wikipedia and Google to keep a citizen’s name or image from appearing in Internet search results and certain web postings. Advocates of the right to be forgotten contend that individuals should be able to control how their personal information is displayed on the Internet, including the ability to have that personal information deleted entirely from the Internet.

   The philosophical underpinnings of the right to be forgotten have been the basis for several lawsuits in Spain and Germany against Wikipedia and Google filed in the past two years, with individuals suing to restrict how their private information is displayed on the Internet. Those lawsuits sought to restrict various types of personal information: a plastic surgeon sued to suppress a story of alleged malpractice, a middle-school principal sued to obscure a listing of his public urination citation, and individuals convicted of murder sued to have their names deleted from Wikipedia pages that discuss the murder. The right to be forgotten would also allow individuals to force companies to delete the individual’s personal information that was obtained online, such as records of past online purchases and web browsing histories.

   Establishing a right to be forgotten would dramatically change how online companies stored and processed data in Europe. The right to be forgotten would also create free speech concerns by potentially censoring a speaker who wishes to use another person’s name or personal information, thus preventing society from receiving the information.

   The European Union is currently drafting directive legislation that would establish a right to be forgotten in Europe. While the right to be forgotten has received widespread support in Europe, it is unlikely that the United States would be as receptive to such a right to be forgotten. The difference in enthusiasm for the right to be forgotten between Europe and the United States can be traced to different approaches to both personal privacy and the importance of free speech. In Europe, the right to personal privacy is explicitly stated in the European Convention of Human Rights, and has been especially revered in post-fascist and post-communist Europe, which had a history of governments using an individual’s private information to persecute that individual.

   In contrast, the United States Constitution law does not expressly provide for a right to privacy; individual privacy has developed as a court-created doctrine where various elements of the Bill of Rights were combined to form the “sphere of privacy” discussed by the Supreme Court in Griswold v. Connecticut and Roe v. Wade. The United States, also, has the broadest free speech protection in the world, with any attempted restriction on speech reviewed by the courts with the highest level of scrutiny. While free speech is protected in Europe, it receives less protection when it conflicts with other interests, such as protecting the rights and reputation of others, public health, and morals. As a result, Europe’s decision to institute a right to be forgotten is the product of placing a higher value on personal privacy than free speech; whereas the United States’ hesitancy to adopt the right to be forgotten can be attributed to the desire to preserve free speech over personal privacy when the two values conflict.

   The right to be forgotten, however, is not without its problems, even under the European plan. It would be difficult, or impossible, for laws in Europe establishing a right to be forgotten to provide for the ability to delete information posted or stored in countries outside of the European Union. There may need to be exemptions to prevent individuals from deleting certain information that may be needed by doctors or law enforcement. There would also need to be a determination of who would be responsible for deleting private material: the party who posts the information or the party who allows access to the information? These logistical issues need to be resolved before the right to be forgotten can be implemented.

   The right to be forgotten represents a reaction to the growth of the Internet and its evolution into an entity that has the ability to perpetually store information that an individual may wish to keep private. In an attempt to retain that individual privacy, however, European policymakers have indicated they are willing to subvert the free speech rights of society to speak on the Internet. While free speech rights in Europe frequently receive less protection than they do in the United States, the right to be forgotten would severely undercut even Europe’s less-stringent free speech rights. By allowing individuals to delete personal information, the right to be forgotten gives individuals both the ability to control speech in the present and to change what was said about them in the past.