Does an individual have the right to be forgotten?
I am thankful to have grown up before the advent of the Internet. For today's teenagers and young adults, their youthful indiscretions are now frequently published for the world to see, preserved in perpetuity on a server in an air-conditioned warehouse thousands of miles away.
I am not sure what my job prospects would have been if the details of my most infamous moments from high school and college were available to prospective employers through a simple Google search.
Wouldn't it be nice to be able to hit the "Delete" button on the most foolish decisions you made as a young adult so that those poor choices did not follow you for the rest of your life? Our criminal justice system has accommodated this type of procedure for decades. Approximately 30 states allow criminal records for minor offenses to be sealed or expunged upon completion of some combination of punishment and restitution, frequently involving probation or community service. In a similar vein, credit reporting agencies are required to remove adverse information from credit reports after a period of time.
However, technological advances threaten even these modest examples of where someone's prior record can be wiped clean. For example, prospective lenders or employers often can find archived information online in a matter of seconds that, by law, was supposed to be deleted by credit reporting agencies. Similarly, archived criminal records are easily available online.
Shannon Dietrich, litigation director of Community Legal Services in Philadelphia, recently noted that "back in the day, criminal records kind of faded away over time. They existed, but you couldn't find them. Nothing fades away anymore."
Earlier this year, the European Court of Justice, a "Supreme Court" for countries in the European Union, recognized that, in some circumstances, people have a "right to be forgotten" — or at least have past incidents removed from the public domain. The court held that Google had an obligation to remove individual personal data from search results upon request if that information was "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed."
The case involved foreclosure notices concerning the home of Mario Costeja González published by a Spanish newspaper in 1998. González subsequently repaid his debts such that his home was never foreclosed upon, but Google searches on his name returned archived copies of the negative newspaper announcements. González demanded the newspaper remove the items from its website and that Google remove the references to the newspaper announcements from its search results.
The European Court of Justice did not require that the newspaper remove the items, but it ordered Google to remove links to the newspaper in its search results. The court concluded that the public's interest of having access to that information was outweighed by González's individual right to safeguard his personal information in order to reflect appropriate "sensitivity for (his) private life."
More recently, a court in Japan ordered Google to omit from search results some Internet posts concerning the plaintiff's alleged past involvement in criminal activity — allegations that proved to be untrue. The plaintiff claimed that allowing these false allegations to continue to be accessible on the Internet would irreparably injure his reputation and violate his privacy. The court agreed, holding that the plaintiff's "right to be forgotten" outweighed the public's interest in having access to these false allegations.
Would a court in the United States ever make a similar ruling? It is extremely unlikely based on the broad manner in which the First Amendment's freedom of speech has been viewed historically. The First Amendment, as presently interpreted, provides nearly absolute protection to individuals and companies that publish truthful information that was lawfully obtained. Also, the Communications Decency Act gives nearly blanket immunity to websites from liability for content posted by third parties.
Although the intersection between privacy and free speech is a difficult one, it is one in which our courts have consistently sided in favor of free speech.
The one area in which freedom of speech often does not prevail is copyright law. It is unlawful to post photographs or other copyrighted material without the permission of the copyright holder. Google and other websites have systems in place to block copyrighted material from turning up in searches and to quickly take down copyrighted material upon receiving a notice from the copyright holder.
Yet, the robust system surrounding the protection of copyright holders raises the question of whether similar protection should be available for other information. Michael Fertik, the founder of reputation.com, a company that helps individuals and companies deal with undesirable information on the Internet, recently noted that "if Sony or Disney wants 50,000 videos removed from YouTube, Google removes them with no questions asked. If your daughter is caught kissing someone on a cell-phone video, you have no option of getting it down. That's wrong. The priorities are backward."
The greatest hope for finding a balance between freedom of speech and the right to privacy lies in voluntary arrangements between Internet companies and users. For example, most major social networking sites already provide means by which users can remove their content, whether they are minors or not. Customers have backlashed strongly against social network providers, most notably Facebook, when they have considered loosening their privacy policies.
Similarly, an entire cottage industry, led by reputation.com, tries to use technology to manipulate the results of Google's search algorithm so that less desirable links appear much lower in a Google search.
The rise of the Internet has created a growing conflict between freedom of speech and the right of privacy. As one commentator recently noted, "There is an inevitable conflict between two distinct social values — privacy and free speech. The question is how do societies value those competing rights. Technology didn't create the tension but just revealed it in a dramatic way."
In the United States, this tension is almost always resolved in favor of free speech. Unless there is a shift in the way our courts treat information posted on the Internet, I will continue to give my children this message: “Be very careful what you post on the Internet. Nothing fades away anymore.”
Bryan Walters is a partner in the trial department at Varnum LLP specializing in federal court and intellectual property litigation.