Last month, a video emerged online of a University of Mississippi student biting off the head of a hamster during a spring break party. Soon enough, the young man was identified and has since withdrawn from the university, possibly facing animal cruelty charges. Should his alcohol-fueled spring break misdeed cause him embarrassment and woe decades later? Should future employers, lovers, family members or potential in-laws be able to dredge up this incident? Or does the young man have a right to be forgotten and define himself as someone else than that guy who bit off a hamster’s head?
While the European Union (EU) has embraced the view that individuals should have the ability to remove certain personal information from the internet for more than a decade, the United States has been slow to adopt the concept.
In May of 2014, a ruling by the European Court of Justice (ECJ) brought the topic to the forefront. The fact that the defendant was Google Spain, a subsidiary of Google Inc., a company based in the United States, brought the conversation close to home for Americans. In the ECJ case, the plaintiff, a Spanish gentleman whose home foreclosure (since reconciled) had been publicized online, asked for the removal of the content “since it was no longer relevant.” Previously, the Spanish Data Protection Agency had denied his request, determining that the content was legal and accurate. The ECJ disagreed, however, concluding that the data, while lawful, was “…inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” Its decision concluded that search engines are responsible for the links they point to, which forced Google to comply with EU data privacy laws and remove links pointing to pages where the gentleman’s information exists. The ECJ further stipulated that Google was required to allow others to request information removal. For clarification, the official decision noted that future requests for removal could be denied if such information were justified because of a significant question of public safety or interest. That means that the data controller, in this case Google, would be required to check all inquiries for deletion against this test.
Wikipedia founder, Jimmy Wales—who is serving on a Google advisory committee that will help the data giant determine which removal requests will be allowed— is outspoken on his opinion of the legislation. He believes that allowing an individual to dictate what links are removable is wrong. He states: “In the case of truthful, non-defamatory information obtained legally, I think there is no possibility of any defensible right to censor what other people are saying. It is important to avoid language like data because we aren’t talking about data—we are talking about the suppression of knowledge.” In most cases, this “suppression of knowledge” is requested by individuals concerned with covering up nefarious activities. After Google’s request for removal form became available online, the company received over 12,000 requests for data removal in one day.” Since the form was published, over 250,000 links have been allowed to be removed. In a bold attempt to champion journalistic freedom in the face of at least some of these removed links, the British news source The Daily Telegraph is maintaining a list of Telegraph stories that have been removed from search results and making it available on its site.
Mr. Wales’ concerns about censorship are justified, as there seems to be plenty of gray area when determining which links should stay and which should go. According to the BBC, some of those first requests to be forgotten included a convicted pedophile’s appeal for links to pages regarding his conviction to be removed; a doctor who asked that links to negative patient reviews be deleted; and a politician running for re-election who wanted links to an article referencing his conduct in office deleted. Most people would agree that in the cases above, the information should not be removed from search results. But what about shocking, and far more juvenile offenses such as the hamster-biting fraternity boy mentioned earlier?
Lawyer and former Director of Global Public Policy at Google, Andrew McLaughlin, finds the ECJ ruling fear-inducing. In discussing it, he imagines a dystopian political system where the well-connected rewrite history to whitewash their misconduct while collecting armloads of personal information and surveillance on private individuals. This reliance on maintaining the status quo and discouraging individual thought was rife in the totalitarian governments of pre- and post-World War I Europe. Lack of privacy protection makes it easy for the elite or politically powerful to coerce individuals into silence. It also removes people’s ability to reference past events, a tactic used by dictators and authoritarians throughout history and part of the reason why the EU is so protective of privacy rights.
American hesitancy toward the right to be forgotten finds its basis in the dichotomy between privacy and freedom of speech. Our nation’s political and cultural background have predisposed us to be more concerned with protecting speech than privacy. However, there are certainly strong advocates of privacy protection in the U.S. They argue that in the past, adverse events in a person’s life would be expunged after a certain time period—criminal records would be sealed; credit reports cleared of bad debt; bankruptcies removed—so that individuals seeking to “start over” had the opportunity to move beyond earlier bad decisions or regrettable events.
Unfortunately, the Internet has ensured that if such events are posted online, they can be found via a simple search far beyond the period that the records have relevancy. This ability to store and retrieve data indefinitely can significantly impact the ability of people to recover, move forward, or rehabilitate their lives. What’s more, with advances in big data collection and data mining techniques, there is a possibility that every “Like” button you click on Facebook or every tweet or retweet can be aggregated and assembled to create a road map of your actions and opinions over time. Privacy protectionists try to win points with groups that advocate for free speech by claiming that disregard for protections provided by right to be forgotten legislation would be a deterrent to free speech. For example, knowing that links to search results for politically unpopular views will be cached for an indefinite amount of time could limit participation in political activism as people may worry about posting views that clash with the mainstream.
On the other hand, opponents of the right to be forgotten claim that this type of legislation allows discretionary censorship of individual information that may be important to consumers or individuals making professional or personal choices. This “cleaning” of data could preclude people from being able to protect themselves from fraud and personal injury when researching potential employees, service providers, friends, and even family. Visionary author George Orwell famously stated: “He who controls the past controls the future.” Allowing revisionists to “sanitize” events, reviews, and personal histories to reflect the reality that they want pushed to the forefront may not be in the best interest of the public. With the adoption of right to be forgotten legislation, the state could allow individuals to remove links to factual information for their benefit or the benefit of others that they designate. Even though the editing of information is self-directed, it still amounts to censorship.
Questions that need to be answered as our consideration of the right to be forgotten law continues include: How much time must pass before relevance is determined? Who is going to make the call in weighing public interest and individual rights against one another when examining requests for deletions? Finally, there is also the issue of compliance and its cost to companies and consumers. Marc Dautlich, a lawyer at Pinsent Masons, recognizes the difficulty in asking search engines to manage the status of hundreds of thousands of requests. He asks: “If they get an appreciable volume of requests what are they going to do? Set up an entire industry sifting through the paperwork?” It’s a good question and one that the courts should consider closely when contemplating legislation.
So which is the more important right to protect—freedom of speech or privacy? I suggest we need both. We need privacy so we can voice our opinions free from political or personal reprisals. We should be free to speak our minds without fear that it may be held against us in perpetuity. People grow, change, and mature in their personal and professional lives. Something said or done as a child or a young adult probably does not reflect the skills, thoughts or opinions of the same person twenty years later. We should not allow youthful indiscretions to be a blot on someone’s character forever. But we also need freedom from censorship in order to operate in a truly enfranchised society. For example, allowing professionals to cherry-pick and remove reviews from search histories or to eliminate evidence of incidents of wrongdoing is to suppress the lawful truth. Some behaviors come within the scope of public interest, and records regarding them should be retained for reasons of public safety. Another type of information, the kind that is gossipy, hateful, libelous, slanderous or defamatory and outdated is a different matter and individuals should be allowed to remove this type of data from public view.