The right to be forgotten is a nascent legal concept arising from the need to ‘determine the development of [one’s] life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past.’ France law began recognizing this new right in 2010. Critics claim the laws are vague, unenforceable, and potentially a threat to open access to information, which is an existing legal right in many countries. There are also concerns about its interaction with the right to privacy and whether it would decrease the quality of the Internet through censorship and a rewriting of history.
Many nations have very strong domestic freedom of speech laws, which would be challenging to reconcile with the right to be forgotten. Some academics see that only a limited form of the right to be forgotten would be reconcilable with US constitutional law; the right of an individual to delete data that he or she has personally submitted. In this limited form, individuals could not have material removed that has been uploaded by others, as demanding the removal of information could constitute censorship and a reduction in the freedom of expression.
In 1995 the European Union adopted the ‘European Data Protection Directive’ (Directive 95) to regulate the processing of personal data. This is now considered a component of human rights law. The right to be forgotten has been contested in the courts of Argentina and the US, both of which recognized the validity of such a right. It has not as of yet been accepted as a universal human right, however the new ‘European Proposal for General Data Protection Regulation’ applies to international companies who are active in the EU, and penalties can be applied to them for their actions in the EU, making this directive of global importance.
The right to be forgotten ‘reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them.’ It has been defined as ‘the right to silence on past events in life that are no longer occurring.’ The right to be forgotten leads to allowing individuals to have information, videos or photographs about themselves deleted from certain internet records so that they cannot be found by search engines. There are few other protections against the harm from revenge porn (sexually explicit media publicly shared online without the consent of the pictured individual with the intent to shame or embarrass them), or pictures uploaded due to poor judgement.
The right to be forgotten is distinct from the right to privacy, due to the distinction that the right to privacy constitutes information that is not publicly known, whereas the right to be forgotten involves removing information that was publicly known at a certain time and not allowing third parties to access the information. Limitations of application in a jurisdiction include the inability to require removal of information held by companies outside the jurisdiction. There is no global framework to allow individuals control over their online image.
In 2014, the European Court of Justice ruled against Google in ‘Costeja,’ a case brought by a Spanish man, Mario Costeja González, who requested the removal of a link to a digitized 1998 article in ‘La Vanguardia’ newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid. He initially attempted to have the article removed by complaining to the Spanish Data Protection Agency, which rejected the claim on the grounds that it was lawful and accurate, but accepted a complaint against Google and asked Google to remove the results. Google sued in the Spanish Audiencia Nacional (National High Court) which referred a series of questions to the European Court of Justice. The court ruled that search engines are responsible for the content they point to and thus, Google was required to comply with EU data privacy laws. It began compliance in May 2014 during which it received 12,000 requests to have personal details removed from its search engine.
‘Index on Censorship,’ a UK non-profit, claimed that ‘Costeja ruling … allows individuals to complain to search engines about information they do not like with no legal oversight. This is akin to marching into a library and forcing it to pulp books. Although the ruling is intended for private individuals it opens the door to anyone who wants to whitewash their personal history….The Court’s decision is a retrograde move that misunderstands the role and responsibility of search engines and the wider internet. It should send chills down the spine of everyone in the European Union who believes in the crucial importance of free expression and freedom of information’
When Google agreed to implement the ruling, European Commission Vice-President Viviane Reding said, ‘The Court also made clear that journalistic work must not be touched; it is to be protected.’ However, Google has been criticized for taking down (under the Costeja precedent) a BBC News blog post about Stan O’Neal by economics editor Robert Peston. Jimmy Wales Wikipedia’s Founder said ‘has described the EU’s Right to be Forgotten as deeply immoral, as the organization that operates the online encyclopedia warned the ruling will result in an internet riddled with memory holes.’
In 2009, lawyers for Wolfgang Werlé who was convicted for murdering German actor Walter Sedlmayr sent the Wikimedia Foundation a cease and desist letter requesting that Werlé’s name be removed from the Sedlmayr’s English language Wikipedia article, citing a 1973 Federal Constitutional Court decision that allows the suppression of a criminal’s name in news accounts once he is released from custody. Wikimedia is based in the United States, where the First Amendment protects freedom of speech and freedom of the press, under which the articles on Wikipedia would fall. In Germany, the law seeks to protect the name and likenesses of private persons from unwanted publicity. In 2008, a court in Hamburg supported the personality rights of Werlé, which under German law includes removing his name from archive coverage of the case.
Two cases in US courts have also raised the issue. In ‘Melvin v. Reid’ (1931), an ex-prostitute was charged with murder and then acquitted; she subsequently tried to assume a quiet and anonymous place in society. However, the 1925 film ‘The Red Kimona’ revealed her history, and she sued the producer. The court reasoned that ‘any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation.’ In ‘Sidis v. FR Publishing Corp.’ (1940) the plaintiff was William James Sidis, a former child prodigy who wished to spend his adult life quietly, without recognition; however, this was disrupted by an article in ‘The New Yorker.’ The court held here that there were limits to the right to control one’s life and facts about oneself, and held that there is social value in published facts, and that a person cannot ignore their celebrity status merely because they want to.
The Daily Omnivore 