If you are reading this, it is likely that the vast majority of your life’s questionable decisions are behind you. For late millennials and those in so-called Generation Z, the Internet has not only served as a source of research and entertainment, but it has also served as persistent documentary evidence of past actions and choices. An emerging legal theory, which has found a foothold in the European Union, asserts that there is a right to be forgotten online. And the United States may eventually follow suit.
A Right to be Forgotten in the EU
The European Union Court of Justice created a “right to be forgotten” under the 1995 Data Protection Directive in the case Google Spain v. Agencia Espanola de Proteccion de Datos.[1] Plaintiff argued in that case that newspaper articles from sixteen years prior detailing his financial difficulties were easily found on Google’s search engine and were damaging his current, and much improved, financial reputation. The court found for Plaintiff, holding that Plaintiff’s privacy interests outweighed the interests of other internet users trying to access that information. The court said that search engines in general allow for private details to emerge about individuals that would never otherwise be available, or at least, so easily accessed. The court seemingly created a balancing test where the individual’s interest in privacy is weighed against the public knowledge rights of internet users. That consideration takes into account the “nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary . . . according to the role played by the data subject in public life.” This leads to the inference that the more public an individual is (e.g., a celebrity), the less of a “right to be forgotten” they have. The court ultimately demanded the removal of the links to the article from Google’s search engine because the information was no longer “necessary in light of the purposes for which [it] was collected.”
The broader holding of the case was that even if the search engine was not located in the EU, if it had a branch in an EU territory, or sold advertising space in one of the territories, it had to comply with the ruling.[2] The court established that search engines fell under the 1995 Data Protection Directive because they handle personal information. Finally, the court established its “right to be forgotten” for certain circumstances. If information is inaccurate, inadequate, irrelevant, or excessive for the purposes of data processing, it must be removed pursuant to a request. The court stressed that it requires a case-by-case analysis, and that the right of free expression and the right of a free media will have to be considered against the individual’s right to privacy and the type of information at issue.
Efforts to comply
In November 2014, the EU issued guidelines in response to the Google Spain ruling which asked Google to apply the ruling to its entire “search empire.”[3] The request acknowledged that anyone looking for certain information that had been removed from a European Google page, google.de (Google Germany) for example, could simply access google.com and find it. A report from the New York Times identified that Google has received over 175,000 requests to remove information, as of November 2014.[4] Google has granted roughly 42% of those requests.[5] EU officials continue to push for Google to comply.[6]
On February 3, 2015, Reuters reported that Google had established its own panel to recommend to the company a course of action related to compliance with the EU ruling.[7] The report claimed that the panel was “leaning towards” recommending that Google only comply with the EU ruling in relation to its European websites. In other words, google.com would remain free from the ruling. The panel’s decision is expected to be released within a few days.
The Right to be Forgotten in the United States
As of February 5, 2015, there has not been a ruling considering a “right to be forgotten” in the digital age in a US jurisdiction. However, the general idea that one has the right to escape his past has been litigated and opined on in the US. In Melvin v. Reid, an ex-prostitute who turned her life around, only to have a movie made several years later exposing her checkered past, sued and won.[8] The California District 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.”[9] The court essentially couched the opinion in a constitutional right to privacy.[10] However, in Sidis v. F-R Pub. Corp, the Second Circuit held that the New Yorker was within its rights to publish a story about an ex-child star against the man’s wishes.[11] The court reasoned that the public has some right to the access of information, particularly information relating to public figures.[12]
Though jurisdictions vary, it appears that there is not a right to be forgotten in the US—certainly not of the type the EU created. The Supreme Court’s denial of cert in the Sidis case hints at the idea that the Sidis ruling is the law of the land. However, the ruling was from 1940, and it focused on an ex-celebrity. It is not binding on other circuits, and it is easily distinguishable from the private individual who won her case in Melvin. If a US court were to hear a case like the case heard by the EU court, a similar balance between privacy rights and the rights of free expression would have to be struck. While impossible to predict, an outcome like the EU decision is possible. For instance, a court could use the reasoning from Melvin and Sidis to reach an identical holding to the EU—giving more protection for private, and less protection for public individuals. Even William Prosser’s famous article on privacy tort law identified this dichotomy:
There can be no doubt that one quite legitimate function of the press is that of educating or reminding the public as to past history, and that the recall of former public figures, the revival of past events that once were news, can properly be a matter of present public interest.[13]
So it is fair to say that while the issue has yet to be litigated in the US, an EU-like ruling may one day surface on the this side of the Atlantic. But it is impossible to know.
[1] Google Spain SL, Google Inc. v. Agencia Esponla de Procteccion de Datos, Case C-131/12 (May 13, 2014).
[2] Id. See also, Fact Sheet on the Right to be Forgotten ruling (C-131/12), a European Union Commission Report, available at, http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf.
[3] Mark Scott, ‘Right to be Forgotten’ should Apply Worldwide, E.U. Panel Says¸ The New York Times (Nov. 26, 2014), http://www.nytimes.com/2014/11/27/technology/right-to-be-forgotten-should-be-extended-beyond-europe-eu-panel-says.html?_r=0.
[4] Id.
[5] Id.
[6] Europe’s Expanding ‘Right to be Forgotten.’ The New York Times (Feb. 4, 2015), http://www.nytimes.com/2015/02/04/opinion/europes-expanding-right-to-be-forgotten.html.
[7] Julia Fioretti, Google-appointed panel to recommend EU only ‘right to be forgotten,’ Reuters (Feb 3, 2015 1:39pm), http://www.reuters.com/article/2015/02/03/us-google-eu-privacy-idUSKBN0L726I20150203.
[8] Melvin v. Reid, 297 P. 91, 93 (Cal. Ct. App. 1931).
[9] Id. at 93.
[10] “We believe that the publication by respondents of the unsavory incidents in the past life of appellant after she had reformed, coupled with her true name, was not justified by any standard of morals or ethics known to us, and was a direct invasion of her inalienable right guaranteed to her by our Constitution, to pursue and obtain happiness. Whether we call this a right of privacy or give it any other name is immaterial, because it is a right guaranteed by our Constitution that must not be ruthlessly and needlessly invaded by others. We are of the opinion that the first cause of action of appellant’s complaint states facts sufficient to constitute a cause of action against respondents.” Id. at 93-94.
[11] Sidis v. F-R Pub. Corp., 113 F.2d 806, 810 (2d Cir. 1940) (cert. denied).
[12] “But despite eminent opinion to the contrary,5 we are not yet disposed to afford to all of the intimate details of private life an absolute immunity from the prying of the press. Everyone will agree that at some point the public interest in obtaining information becomes dominant over the individual’s desire for privacy.” Id. at 809.
[13] William Prosser, Privacy, 48 Calif. L. Rev. 383, 418 (1960).