Ideas 2012 July/August 2012

The Right to Be Forgotten

More

For a preview of the titanic clash we’re about to witness between privacy and free speech on the Internet, consider the case of Virginia Da Cunha. The Argentinean pop star posed for racy pictures, which found their way to the Internet. Then, thinking better of her decision, she sued Google and Yahoo, demanding they take the pictures down. An Argentinean judge, invoking a version of “the right to be forgotten,” sided with Da Cunha, fined Google and Yahoo, and ordered them to delink all sites with racy pictures that included her name. Claiming that removing only selected pictures was too difficult, Yahoo decided to block all sites even referring to Da Cunha from its Argentinean search engine. Today, when you plug the name Virginia Da Cunha into Yahoo Argentina, you get a blank page and a legal notice that the images have been removed by court order.

Soon, citizens around the world may have the ability to selectively delete themselves from the Internet. At the beginning of this year, Viviane Reding, the European commissioner for justice, fundamental rights, and citizenship, proposed codifying a sweeping version of the right to be forgotten in European data-protection law. The proposal is being strenuously resisted by Facebook and by Google, which could be liable for up to 1 percent of its $37.9 billion annual income if it fails to remove photos or other data that people post about themselves and later think better of, even if the data have been broadly shared.

But the right to be forgotten also gives people the right to demand the removal of embarrassing information that others post about them, regardless of its source, unless Google or Facebook can prove to a European regulator that the information is part of a legitimate journalistic, literary, or artistic exercise. This would transform Facebook and Google from neutral platforms into global censors and would clash directly with the principle, embedded in U.S. free-speech law, that people can’t be restricted from publishing embarrassing but truthful information. As a result, the right to be forgotten may precipitate the Internet Age’s most dramatic conflict between European conceptions of privacy and American conceptions of free speech.

However the international legal battles are resolved, the impulse to escape your past on the Internet is an understandable one. Who among us doesn’t regret a tipsy Facebook photo from Cancún? Perhaps the most effective solution to the drunken-Facebook-photo problem isn’t legal but technological. Companies with names like TigerText are already offering the possibility of “disappearing” your data—for example, allowing you to specify, when you send a text message, whether you want it to last for a day or a month. The Europeans may be going overboard in creating a new legal right to escape your past on the Internet, but if the threat of regulation prompts Facebook and Google to explore less heavy-handed ways of empowering users around the globe to clean up their online reputations, perhaps Europe and America can find some kind of common ground after all.

Next idea: Boot Camp for Teachers

Jeffrey Rosen is a law professor at George Washington University and legal-affairs editor of The New Republic.
Jump to comments
Presented by

Jeffrey Rosen is a professor of law at George Washington University.

Get Today's Top Stories in Your Inbox (preview)

Is Technology Making Us Better Storytellers?

How have stories changed in the age of social media? The minds behind House of Cards, This American Life, and The Moth discuss.


Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

Is Technology Making Us Better Storytellers?

The minds behind House of Cards and The Moth weigh in.

Video

A Short Film That Skewers Hollywood

A studio executive concocts an animated blockbuster. Who cares about the story?

Video

In Online Dating, Everyone's a Little Bit Racist

The co-founder of OKCupid shares findings from his analysis of millions of users' data.

Video

What Is a Sandwich?

We're overthinking sandwiches, so you don't have to.

Video

Let's Talk About Not Smoking

Why does smoking maintain its allure? James Hamblin seeks the wisdom of a cool person.

Writers

Up
Down

More in National

More back issues, Sept 1995 to present.

Just In