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Camille Conquer and Amanda E. Bacoyanis, « Legitimate Right or Dangerous Denial: The Right to Be Forgotten Online »

29 janvier 2015

The “right to be forgotten” is a (newly recognized) right of individuals to have personal information removed from the internet that they find embarrassing, harmful, or potentially stigmatizing.  Whether it is, or should be, an actual right is a hotly contested subject throughout the world.


The Right to Be Forgotten in the EU

On May 13th, 2014, the Court of Justice of the European Union unexpectedly ruled that individuals have a right to be forgotten on the internet if they can show three conditions:

  1. Inaccuracy;
  2. Inadequacy; and
  3. Irrelevance or excessiveness for the purpose of the data processing


So far, 189,000 removal requests have been sent to Google regarding some 684,000 links ranging from negative press stories, serious criminal records, and embarrassing photos.


The Debate

Google has created a European advisory council to assess the “right to be forgotten” through expert statements and their debate of law, technology, and ethics. From September to November, the council has held public meetings in Madrid, Rome, Paris, Warsaw, London, Berlin and Brussels.


At the September 2014 meeting in Paris, some experts raised the issue that the right to be forgotten could lead to a right to denial and that the withdrawal of links from a search engine could erase the information at issue, effectively re-writing history.  Others proposed that Google should not be the one who decides whether a link should be de-listed, but rather a Court of Justice, because judges are in charge of protecting fundamental rights.


The European privacy advisory body (“the Working Party”) published guidelines on the implementation of the judgment regarding the “right to be forgotten” on November 26, 2014.  In particular, the Working Party observed that de-listing decisions must be implemented on all relevant domains to satisfactorily guarantee the rights of data subjects according to the ruling.  It also specified that no information is to be deleted from the original source, and confirmed that search engine operators act as the data controllers.


Finally, Google’s Advisory Council’s final report is eagerly expected to appear in early 2015, while negotiations on the EU’s data protection reform are still in full swing.  Unsurprisingly, Google is not shying away from further litigation to safeguard, in its view, the freedom of speech and access to information.


The Right to be Forgotten in the USA

The Court of Justice decision and Google’s removal program, however, do not have global implications.  Currently, the removal program is only available to citizens or residents of an EU member state, no matter their nationality.  There is no similar federal legislation pending in the USA.  This could be attributed to the difference in how privacy rights are viewed in the EU versus the USA.


The protection of personal data, as specified in Article 8 of the EU Charter of Fundamental Rights, is an extension of the “right to privacy.” Furthermore, the protection of privacy operates both in a public and in a private place, in most member states of the EU.


In contrast, privacy rights in the USA are more centered around individual control, protecting against unwanted intrusions, and personal autonomy.  The protection of privacy rights mostly do not extend to public places in the USA.  Thus, since most of the information at issue in these cases is willingly shared initially or is otherwise public information, it may be more difficult for citizens to get similar rights in the USA, especially considering the policy and constitutional guarantees of freedom of speech and freedom of the press.


Trendsetting Legislation?

Although a federal “right to be forgotten” may be a long way off, some states may be moving in that direction. For example, effective as of January 1, 2015, California has implemented the “Online Erasure” statute (Cal. Bus. & Prof. Code § 22581). Available only to minors under the age of 18, this statute requires websites that are directed towards minors, or that have “actual knowledge” of use by minors, to provide clear notice and instructions that those minors may have content removed from the website.  It was enacted to protect minors who may have revealed information about themselves that a potential employer or college admissions officer would find problematic.


The California statute may be indicative of a much larger movement towards accepting a right to be forgotten in the USA.  However, as most American jurisprudence stands today, it is a better bet to be careful about what you post online rather than to rely on the benevolence of websites to let you take something down.


Amanda E. Bacoyanis is an attorney working with Partridge & Garcia with a current focus on issues involving trademarks and domain names.  Amanda is a recent graduate of The John Marshall Law School where she is currently pursuing an LL.M. in Intellectual Property Law.


Camille Conquer is a former intern of Partridge & Garcia, and is pursuing an I.P. Law Master’s degree at La Sorbonne University in Paris, France, to be completed in 2015.

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