Professionalism/The Right to Be Forgotten

The Right to Be Forgotten (RTBF) is a right for individuals to permanently erase negative personal information from search engines and websites under certain circumstances. Currently, the European Union and Argentina have recognized this concept as a law. Free pressing rulings in the first amendment rights prevents the U.S. from adopting RTBF. This means that Americans must deal with the possibility that anyone, including potential employers, can find information about them on the internet that is damaging and sometimes inaccurate.

History and Recognition

European Union

In 1995, the European Union adopted the European Data Protection Directive, intended to regulate and supervise data controllers, ensuring data-processing systems “protect the fundamental rights and freedoms of natural persons, and in particular, their right to privacy. This was implemented 3 years before search engine Google was founded and was mainly enforced to protect privacy from “media companies”.

In 2010, Mario Costeja González filed a complaint with a Spanish data protection agency against a local newspaper and Google Spain for claims relating to auction notices that were filed in 1998, mentioning him. The agency granted his complaint against the agency, but not the newspaper because the newspaper was lawfully published and had no obligations to remove announcements. In the case, Google Spain v. Agencia Española de Protección de Datos, the court questioned whether search engines should be subject to the Directive, which would enforce Google to remove links to data upon request of the data subject.

The European Court of Justice (ECJ) ruled that the Directive applies to search engines and individuals have a right to request search engines to remove links to personal data. Although Google Inc. is based out of the US, its subsidiary (Google Spain) operating within its territory makes it so the directive applies to Google. In 2018, Google released information showing they had received over 2.4 million requests to remove private information from their search engine since the law was enforced 2014, and they have complied with 43.3% of these requests.

Argentina

In 1984, the Argentina Supreme Court ruled that a right to privacy that includes a right of personality, preventing certain unauthorized uses of one’s image, though public figures may not be able to complain about publicity in which they sought. In the 1990’s, Argentina adopted the habeas data movement, provising their constitution to be part freedom-of-government-information law and part data privacy law. Then in 2000, Argentina Congress adopted Ley 25.326, a comprehensive data protection law that regulates how public and private databases collect, process, and distribute data about individuals. This guarantees that data shall be accurate and relevant in relation to its purpose and destroyed when it ceases to be necessary.

Although Argentina protects recognizes RTBF, the unique laws have become relevant to celebrities' RTBF with many unresolved lawsuits. In a 2009 trial, Argentina pop singer Virginia da Cunha prevailed against Google in Yahoo, claiming her photographs were being linked to websites offering sexual content without her permission. Cunha failed to recognize that these photographs acted with fault in relation to the third-party content at stake. The lower court ruled that Google and Yahoo were liable for these photographs but in 2010, the Appeals court ruled that the search engines were not liable. She argued that the Court of Appeals wrongly prioritized freedom of expression and search engines have the potential to amplify harm therefore they should be responsible for the links created between her name and the illicit content. With exception to this one case, Argentina's courts appear to be willing to grant celebrities an effective right to control use of their images online.

United States

The First Amendment of the US Constitution protects the rights to freedom of speech and expression, making it difficult to implement RTBF. According to a survey by Software Advice, 61% of Americans want this right. In 2017, NY Assemblyman David I. Weprin introduced a bill that requires people to remove ‘inaccurate’, ‘irrelevant’, ‘inadequate’, or ‘excessive’ statements about others on the internet. No action has been made and the bill is still pending.

First-Pressing Rulings

Actress Cindy Lee Garcia, was hired to do two lines for a film called Desert Woman and unknowingly, the writer-director used the footage of her from Desert Woman and dubbed over her voice for an anti-islam film titled Innocence of Muslims, which was broadcasted on YouTube in 2016. She claims to have received hate and death threats for this film, even though she did not know that the director was using footage of her for this film. She sued Google and tried to get the film to be taken down, but her case was dismissed due first amendment rights. In the Martin V. Hearst Corporation (2015) case, Lorraine Martin and her two sons were arrested for drug charges and the state declared to deny prosecuting Martin and her arrest was removed from her record. The media had published articles relating to her arrest and Martin asked to remove the articles, which she considered false. The news corporation refused and Martin sued for defamation. The court rejected Martin’s claims, showing there is no recognition of R2BF. Protection of free-press rulings are recognized in Florida Star v. BJF (1989), Cox Broadcasting Co. v. Cohn (1975), and Smith v. Daily Mail Publishing (1979).

Arguments For RTBF

RTBF advocates contend that the policy allows citizens to maintain personal privacy. They also uphold that RTBF can prevent the resurfacing of crimes said to be expunged by law. While many see RTBF as a way for powerful individuals to erase history, advocates stress that these types of removal requests are mostly denied by search engines.

Protection of Private Information

RTBF advocates often argue that certain cases of information removal protect private information without conflicting with free speech. Marc Rotenberg, executive director of a privacy advocacy group, lists examples of such information: “bank account numbers, social security numbers, and sexually explicit images”. For example, Youth Cancer Europe (YCE) has used the RTBF to remove the outdated medical status of youth cancer survivors. Before permitted RTBF, YCE suggests that mortgage and insurance companies used search engines to find a history of cancer in these survivors. These companies could then use this private information to raise the premiums of cancer survivors, claiming that they were more vulnerable to future medical issues.

Prevents the Resurfacing of Expunged Crimes

Another common argument for RTBF is that it enables the erasure of expunged crimes from the Internet. Although courts can expunge offenses from criminal records, these offenses can appear on search engine results linked to blog posts, news articles, or leaked data. A survey shows that 78% of people search others online before any interaction, so the surfacing of these legally nullified actions have the potential to damage personal reputation. These misleading search results are especially detrimental when individuals apply for jobs, where potential employers can “find the supposedly purged information within seconds of entering a candidate’s name into a Google search“. Another RTBF proponent claims that the policy can protect people from being “perpetually adversely judged, stigmatized, and/or punished as a consequence of some long-ago minor infraction ”

Wrongful Removal Requests are likely to be Denied

Dissenters of RTBF fear that the policy allows individuals to limit the public’s right to access information by “altering the historical record”. However, proponents of RTBF point out that not all information removal requests are granted by Google. In Europe, Google receives the requests and “assesses [them] on a case-by-case basis”. Between May 2014 and May 2020, Google received over 3.6 million delisting requests. Only 46.3% of these requests were honored. Delisting requests categorized as “Personal Information” and “Sensitive Personal Information” experienced an approval rate of 97%. On the other hand, 5% of “Political” requests were approved and 22% of “Professional Wrongdoing” requests were approved. The latter two categories are more likely to present cases of wrongful removal of public information, and these categories are far more likely to be denied by Google. In addition, 88% of the requests come from “private individuals”, which represent people who are not government officials, public figures, nor corporate entities. Dr Paul Bernal, law professor at UEA school of Law, argues that if “most of the requests are private and personal ones, then it’s a good law for the individuals concerned”. Google’s transparency reports convince some proponents of RTBF that the policy helps individuals protect privacy more than it allows powerful individuals to delete lawfully public information.

Arguments Against RTBF

Advocates against the right to be forgotten have several arguments for their agenda. These include constitutional violations, history suppression, enforcement, and legal definitions.

First Amendment

Critics argue that the RTBF violates first amendment rights of American citizens. Constitutional attorneys have been vocal, stating that the First Amendment has no exceptions for “ speech deemed "irrelevant" or "inadequate" or ‘excessive.’" Each country has a different set of laws which companies like Google must account for in their proceedings.

History

In removing information found online, critics argue that the RTBF changes or deletes history. “In 2015, The Telegraph, an English newspaper, summarized 100 articles it had published that had been removed from search results in the year since the European Court of Justice articulated the right to be forgotten." These news articles can no longer be searched for, causing concern for researchers and writers. In 2016, a Belgium superior court “ordered a newspaper to delete from a 22-year-old article in its online archives the name of the driver who was in an accident that resulted in two deaths.” In this instance information was removed but the article was maintained. Edits like this are calling into question the scope and limit of RTBF changes.

Enforcement

Since large companies like Google reach dozens of countries, enforcement of laws becomes more complicated. Even in individual states or provinces, the regulations may be subject to change. New York introduced a RTBF bill, but what if someone in New York wants to censor an article published in California? In Europe, “search engines began removing links only from European versions of their sites.”

Definitions

The RTBF has definitions that are subjective. Different advocates want different protections, so it makes classifying changes difficult. For the bill that was introduced in New York, information subject to the RTBF includes "inaccurate, irrelevant, inadequate, or excessive." information. This can be anything from an old legal record to financial matters. Critics are worried that information about criminals or public officials may be censored. However, The Guardian reported that over 99% of links removed from Google were about “private or personal information.”

Conclusion

RTBF presents a complex ethical question for the US. The policy can be used by individuals to save their reputation or protect their right to privacy. At the same time, nefarious individuals can exploit the policy to infringe upon the public's right to historical information. Hopefully, Europe's use of the policy can help the US weigh these delicate pros and cons.