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The Right to Be Forgotten?

Have you ever Googled your own name? Statistics say that you probably have. Egotism aside, in a world where potential employers, schools and even romantic partners are likely to Google you, it would be irresponsible not to be aware of what pops up when you search your name. Many experts (and this non-expert) even recommend setting up a Google alert in your name.

But, what can one really do if, for example, your top search results include an out of date, hopelessly inaccurate and embarrassing article from your hometown newspaper? As much guff as Facebook gets for its poor record on privacy protection, an average Facebook user has a relatively powerful set of tools at his or her disposal: you can delete or untag yourself from embarrassing photos, limit who can view your profile, and even delete your profile completely. But, is there anything you can do about embarrassing search results?

In 2010, Hugo Guidotti Russo, a Spanish plastic surgeon, filed a legal complaint with Spain’s privacy regulator, the Agency for Data Protection, asking them to order Google to remove a 1991 article about a malpractice complaint from his top search results. Russo insisted that because he was cleared of wrongdoing and the article did not mention this, it was within his right to privacy to have the search results removed. The agency agreed. Google is fighting the ruling which was recently referred to the European Court of Justice in Luxembourg on the issue of whether the ruling clashed with EU freedom of expression laws.

The case of the Mr. Russo is connected to the larger issue of whether governments should—or could—guarantee individuals a so-called “right to be forgotten.” Though, like most newly recognized rights, the contours are hazy and the terms ambiguous, the right to be forgotten is catching on. In 2009, the French secretary of state launched a campaign for le Doit a l’Oubli (the right to oblivion, though no English translation is quite adequate) that culminated in the adoption of so-called “codes of good practice” by several trade associations, social networks and search engines.  The provisions are themselves broad but somewhat vague: adoptees are obligated to give notice to users about how to exercise their privacy rights, respect an individual’s right to consent to data processing, to receive prior notice of procession and to object to the use of their data. The European Union is currently tossing around some proposed legislation which would give people the right, any time to have all personal information online deleted—though it’s hard to see how this would work in practice. Even in the United States, where courts have been much less willing to allow individuals to assert a general right of privacy against search engines and social networks, the FTC has issued a working paper called “Safeguarding Consumer Privacy in an Era of Fast Transform” which recommends, among other things, that individuals have the right to have inaccurate information about themselves removed from databases.

Critics of the “right to privacy” argue that, in its extreme form, it’s tantamount to suppression of speech—censorship. Most facts and opinions worth writing about–and reading about– are facts and opinions about people.  Individuals have always been able to fight others who publish false information using libel and defamation law, but falsity is not a requirement for a privacy claim. If individuals are empowered to suppress true or arguably true information written about them by third parties under the guise of privacy, the argument goes, our freedom of expression is significantly burdened.  In one infamous case, Wikipedia was sued by two German murderers  demanding that their names be removed from an article about their victim. German law allows criminals’ names to be withheld from association with their crimes after their sentences are over.  The case of German murderers points to another criticism of the right to privacy: practicability. If a German court orders the removal of the names from the article, does it only apply to the German language version of Wikipedia or with a .de web url? Does it apply to any article accessible from Germany? Or only if the servers which host the article are located in Germany? Moreover, does Wikipedia, which can be edited by anyone, have an ongoing obligation to ensure that the ex-con’s names are kept of the site? For a website like Wikipedia, which relies heavily on user donations, and which relies on a relatively small number of editors to maintain their pages, an ongoing obligation to monitor for information about individuals is a heavy burden.

From the perspective of someone with a rare name—say for example, the author of this post (but three out of the first four results are not me!)—the right to delete whatever search results I wanted from Google would certainly be a blessing. That being said, there is a thin and hazy line between what information is truly private—which should be protected—and what information is merely embarrassing or inconvenient, but a legitimate part of the public discourse.

About the Author

Conrad Coutinho

Conrad Coutinho is a 2L at Columbia Law School
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