case study

Case Study 12.1: The Right to Be Forgotten

Individual privacy is a fundamental right in both the United States and Europe. However, the two regions define this right very differently. In the United States, privacy is “the right to be left alone,” and this right is often superseded by free press and free speech rights.1 This view of privacy was illustrated by a California Supreme Court ruling that journalists could publicize the sexual orientation of a gay man who stopped an assassination attempt on former President Gerald Ford. The hero repeatedly asked the press not to reveal this information, which was hidden from his family, but the court ruled that helping to protect the president had made him a public figure. In Europe, dignity underlies privacy concerns. According to Zurich law professor Rolf Weber, Europeans consider “dignity, honor and the right to private life” the most fundamental rights. There is the “right for the [moral and legal] integrity of a person not to be infringed and for a sphere of privacy to be maintained and distinguished.”2 The European Court of Human Rights ruled, for example, that German papers had violated Princess Caroline of Monaco’s privacy rights by publishing photographs of her and her family. The tribunal noted that the pictures were taken in “a climate of continual harassment” and involved “a very strong sense of intrusion into their private life.”3

The European Court of Justice applied the European conception of privacy to the Internet when it ruled that its citizens have the “right to be forgotten.” A Spaniard petitioned the court to force Google to remove information about the auction sale of his repossessed home. He argued that this reference was irrelevant because the matter had been resolved years earlier. He asked Google to remove the pages and to ensure that news of the auction no longer appeared in search results. The Court of Justice agreed, declaring that individuals have a limited right to ask search engines to remove links with personal information if the information is “inaccurate, inadequate, irrelevant or excessive.”4 This judgment applies to all current or future Internet providers operating in Europe. Opponents of the decision believe that the right to be forgotten is a form of censorship, comparable to allowing librarians to destroy books they don’t like. Media outlets worry that prominent people and corporations will use the system to delete unfavorable information about them.

In response to the EU ruling, Google, which handles an estimated 85% of Europe’s Web traffic, set up a system to handle data removal requests. Applicants fill out an online form that is submitted to a team within Google’s legal department, which weighs the request against the public interest. If the request is approved, the search engine then checks with the publisher, who may argue that the link be retained. Country data-protection regulators decide in cases where individuals dispute Google’s decision. The company received 431,000 applications to remove 1.5 million links from search results and granted approximately 43% of the requests in the first year after the EU judgment. To illustrate the kinds of requests it accepts and rejects, a company official said Google removed a five-year-old story about an individual cleared in a child pornography case but refused to remove a news article about someone recently convicted of child abuse.

Initially, removal applied to the 28 nations of the European Union as well as to Iceland, Norway, Switzerland, and Liechtenstein. The deleted links were still available on Google.com and other search engines. French regulators then ruled that Google must remove the links on all of its databases, thus extending the right to be forgotten beyond Europe. This judgment appeared to violate a basic principle of international law that regulations drafted in one nation apply only to that territory. David Price, senior product counsel for Google, complained, “One country shouldn’t get to make the rules for what happens in another country.”5 Google appealed the French decision to the EU but then decided to comply. Now delisting requests made in any European country apply regardless of the search engine domain.

Efforts are under way to extend the right to be forgotten to the United States and Canada. Two New York state legislators proposed a law similar to the EU statute. The California Minor Eraser Law allows state residents under 18 to petition to have information they posted online removed. Many states have laws prohibiting “revenge porn”—sexually explicit pictures posted without the permission of the other party. The Canadian courts and Office of Privacy are beginning to address Internet privacy cases.

Discussion Probes

1. What does the right to privacy mean to you? The right to be left alone or the right to maintain your dignity?

2. What should take precedence—the right of privacy or the right of free speech?

3. What do you think constitutes “inaccurate, inadequate, irrelevant or excessive” information on the Internet? Can you think of any examples?

4. Should American and Canadian citizens “have the right to be forgotten”?

5. What information should never be deleted from the Internet?

6. Should the regulations of one nation or region apply to the global Internet?