Is the “Right to be Forgotten Law” Ever Coming to America?

Is the “Right to be Forgotten Law” Ever Coming to America?

Table Of Contents

    How Permanent are My Posts on The Internet?

    The extent of the permanency and damage internet postings may carry is far greater than most people appreciate. Your digital footprint, carries the permanency of a tattoo, meaning that it is most likely forever, potentially jeopardizing your “brand,” career, and even future relationships.

    It is highly recommended that when posting on the Internet, you consider not only the present consequences, but any future consequences it may have for you, your family, and innocent persons. However, even the most cautious of posters, may still slip up and post something that may live permanently on in the world-wide-web, casting a dark shadow over you and your reputation for years to come.

    Around one-third of all internet users admit to posting the following information online:

    • Home address,
    • Home phone number,
    • Email address, and
    • Specific details about their employer

    Conversely, about one-third of internet users admit to having no idea whether the above personal information is available online. Most people fail to appreciate that even after you’ve removed a damning post or photo, it doesn’t mean that it’s deleted from the Internet entirely. Internet invisibility is sought by many but achieved by few.

    If you are located in the United States, there is no easy way for you to be completely removed from the Internet. However, the European Union and Argentina have both drafted comprehensive legislation and procedures for persons seeking to remove themselves from popular search engines and websites, manifesting itself in the form of the “Right to be forgotten.” So the question begs, will the concept of the right to be forgotten ever come to the U.S.?

    Defamation Law Fact: Look no further than Justine Sacco, a senior director of corporate communications at IAC, who sent out a careless tweet before boarding her plane to Cape Town, South Africa. After landing 11 hours later, Justine was the number one worldwide trend on Twitter, and out of a job.

    graffiti surveillance camera with white paint background

    The Right to Be Forgotten seeks to allow internet users to “start fresh,” and not be haunted by that embarrassing or inappropriate post or picture they put up at sixteen.

    What is the Right to Be Forgotten?

    Although Europe seems light-years away, all the way on the other side of the Atlantic ocean, the European Union is actually more connected than you think. The E.U. has the most thorough and comprehensive privacy and security data laws in the world, far exceeding the reach and protection United States’ laws cover. For an economic and political union consisting of 28 very different states, they have unified privacy protection laws for all citizens, creating a very similar experience for all Internet users.

    Regardless of race, creed, or location, internet users all experience the same headaches; spam, harassment, and wondering whether your digital footprint will follow you forever. In order to tackle what the right to be forgotten is, let’s first take a look at the when and why behind it.


    When was it created?

    In May, 2014, the European Union Court of Justice determined in Google Spain v AEPD and Mario Costeja Gonzalez (Costeja) that the inappropriate photo you posted of yourself at 18, or ill-thought out political rant, wouldn’t live perpetually on the Internet. Costeja brought action against Google Spain SL in order to prevent the search engine from linking an old news article that included specific information regarding an attachment of his property in search results.

    Costeja laid the framework for modern European personal information laws by allowing persons to ask search engines, such as Google, to remove results that include their name. Granted, the removal request needs to tip the scales of a balancing test, which weighs whether the general public’s use and access of the data is more important than the individual’s need to have it removed.

    The implementation of the right to be forgotten was a step forward in affirming individual autonomy and determination for European citizens, by de-stigmatizing past actions, posts, and other harmful information.


    Why was it created?

    The right to be forgotten was crafted after drawing from the idea that after a specific period of time, criminal convictions should be “dropped” and “forgotten” when persons are seeking employment, insurance, or other opportunities. Both the United Kingdom and France have favored a pro-right to be forgotten approach towards information, while the United States has favored free speech, transparency, and the right to know.


    What does it cover?

    The right to be forgotten is not a catch-all for your digital footprint, as there are specific conditions attached that trigger protection. It aims to balance the right to data protection and privacy with the public’s legitimate interest in accessing that information. The right to be forgotten ruling only provides protection for personal information that is inaccurate, inadequate, excessive, or irrelevant in the context of data processing. This includes videos, photographs, and other information that doesn’t reflect the person you are now.

    The ruling in Costeja stated that a person’s privacy rights must override, “not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.” This means that if your digital footprint does not outweigh the preponderant interest of the public in accessing that information, then you aren’t able to remove it.

    Defamation Law Tip: Keep in mind that the “right to be forgotten” is different from the “right to privacy,” since the “right to privacy” covers information that isn’t publicly known, while the “right to be forgotten” covers information that was made publicly available.


    What are the Pros and Cons?

    The right to be forgotten carries a number of benefits for persons seeking to remove past information from the Internet but does raise equally as many concerns about the practicality of its implementation in the United States.

    The below chart outlines the major pros and cons of the right to be forgotten being implemented in the U.S:

    Self-determination of your online presenceYour need for removal may be outweighed by general public’s interest in accessing and viewing such information
    The ability to remove libelous, embarrassing, and stigmatizing information from a past post or uploadBased on European laws and circumstances, so it carries a potential restraint on the freedoms afforded to U.S. media, journalists, and other parties under the First Amendment
    The removal of illegally uploaded content by a third party, including “revenge porn”Relatively broad, and undeveloped, with lacking precedent
    An opportunity for a fresh startGoogle and other search engines may be backed up with requests to remove information, so it may not be removed immediately
    Removing personal details that compromise your personal and financial safetyLack of transparency surrounding important information about businesses or persons
    Peace of mind when applying for jobsPotential restraint on the media, journalism, and other freedom of speech


    Looking at an up-to-date Google Transparency Report titled, “Search removals under European privacy law,” there is a common theme amongst the most delisted URLs; social media. Of the sites that are most impacted by takedown requests, Facebook, Twitter, Badoo, and Youtube are all at the top. In order to reduce your social media footprint and lower your susceptibility to privacy and defamation attacks, keep the following tips in mind;

    • Delete old and unused accounts
    • Examine and update your privacy settings
    • Use a disposable email address
    • Use anti-tracking tools and browse “incognito”
    • Think twice before you post


    Defamation Law Fact: In June, 2015, Google took important steps towards aligning themselves with the right to be forgotten and announced it would now remove non-consensual pornography posts, also known as “revenge porn.”


    Will the Right to Be Forgotten Ruling Ever Come to the US?

    In July of 2015, a consumer rights organization, Consumer Watchdog, filed a formal complaint with the Federal Trade Commission in an attempt to bring a similar legal concept to the United States. The group argued that such an idea would allow people to regain a certain level of privacy they may have lost because of having certain information on the Internet.

    Unsurprisingly, a survey by Adweek found that 9 out of 10 Americans want some form of the right to be forgotten ruling to be applied in the U.S. Additionally, a 2015 event held by Intelligence Squared US, an organizer of Oxford-Style debates, held a debate on whether the U.S. should implement the right to be forgotten, with 56% percent of the audience voting “yes.” However, skeptics of the ruling wonder if it could survive in the United States, due to its breadth and uncertainty, versus the narrowly tailored and comprehensive First Amendment of the Constitution.

    Numerous critics worry there could be an infringement on the First Amendment, the right to free speech and freedom of expression, potentially curbing the integrity of the news and other media. Although the right to be forgotten has not been formally drafted as one comprehensive law or regulation in the U.S. and may formally never be, the U.S. does have laws in place that cumulatively strive to protect the privacy and information of certain parties.


    U.S. laws protecting privacy and personal information:

    1. The California Minor Eraser Law: A law allowing California residents below the age of 18 to request the removal of personal information posted on online servers, including websites, mobile apps, social media sites, and other online services.
    2. The Federal Trade Commission Act: A federal consumer protection law that prohibits deceptive and unfair practices with company privacy policies and disclosures of personal data. The FTC Act is the central enforcer of the Children’s Online Privacy Protection Act (COPPA), a law regulating the online collection of information from minors.
    3. The Gramm-Leach-Bliley Act: A financial disclosure law, regulating financial institutions (including banks, insurance companies, security firms, and other financial service businesses) and their collection, use, and disclosure of that information. Specifically, it protects against the disclosure of private personal information and in some instances provide persons with the ability to withdraw from having their information distributed and shared.
    4. The Electronic Communications Privacy Act and Computer Fraud and Abuse Act: Both of these laws regulate the interference and interception of electronic communications and the subsequent tampering of it.
    5. The Fair Credit Reporting Act: A law applying to consumer reporting agencies, and persons who provide and use consumer reports. It seeks to protect consumers from negligent or intentional reporting of credit information.
    6. The Health Insurance Portability and Accountability Act (HIPAA): HIPAA regulates how health care providers, pharmacies, and data processors handle medical information. Specifically, it oversees the collection, use, and disclosure of certain protected health information. HIPAA also requires the holding entity to correct any inaccurate information and notify individuals on how the information is being used.


    Defamation Law Fact: To date, Google has removed over 1.75 billion URLs from over 550,000 requests, and rejected over 40 million takedown requests.


    Work With an-Internet Defamation Lawyer to Remove Content From Search Engines and Websites

    With an estimated 3% of Internet users making a regular habit of checking their digital footprint, and 22% admitting to searching for themselves online occasionally, it’s clear Internet users need to take a more proactive approach to protecting their online reputation. However, it isn’t always possible to act proactively in regards to your digital footprint.

    Reacting swiftly and efficiently, to remove defamatory content and hold a malicious poster liable, is an option, an option that should be exercised as soon as possible. If you have been subject to online attacks, defamation, and other libelous postings online, and want the content removed, the Internet Defamation Lawyers of Minc Law will fight to remove it and hold the perpetrator accountable. To schedule a free, no-obligation initial consultation, call (216) 373-7706, or schedule a meeting online.