Within the past ten years, the European Union (EU) has enacted laws creating a “right to be forgotten.” The basic idea is that individuals should not be perpetually stigmatized by past actions. While not without practical problems, I suggest that a formal U.S. blue-ribbon panel of experts, perhaps at the level of the American Bar Association or American Law Institute, to name two examples, study the numerous issues surrounding the question of whether or not the U.S. needs a specifically identifiable legal right to be forgotten.
Many capable commentators have already written about the pros and cons of the right to be forgotten and the right of privacy. Much recent commentary occurred after a 2014 decision by the Court of Justice of the European Union (CJEU) in Google Spain v. Agencia Espanola de Protection de Dados, Mario Costeja Gonzalez. The CJEU held that an Internet search engine must consider individual requests to remove links to Web pages when the search results “… appear to be inadequate, irrelevant …, that they are not kept up to date,… or no longer relevant or excessive… in light of the time that had lapsed.” A rejection of the request could be appealed to public authorities.
The CJEU decision in reviewing European Union law noted that the preamble of the relevant Directive (Directive 95/46) states “… data-processing systems are designed to serve man;… they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to … the well-being of individuals;….” Essentially the EU law envisions in particular situations a balancing test between the “legitimate interest of internet users potentially interested in having access to that information…” and “the data subject’s fundamental rights….” The case in question involved a Google link to a newspaper publication 16 years earlier mentioning a private individual’s name and relating to a real estate auction for the recovery of certain debts. The CJEU ordered that the Google search link be deleted but noted that the result might be different under a variety of circumstances including “the role played by the data subject in public life.”
The following is a brief and incomplete overview of the current US legal environment with minimal legal citations in the interest of brevity.
1. The word “privacy” does not appear in the U.S. Constitution although significant U.S. Supreme Court decisions have inferred that a right to privacy does exist. The First Amendment does specifically provide powerful protection to freedom of speech and press. Hence, a preliminary question is if a Constitutional amendment directly addressing privacy is desirable, and if so, how should it be worded?
2. The idea of a right to privacy in U.S. law dates from an 1890 Harvard Law Review article, “The Right to Privacy,” written by Louis Brandeis and Samuel Warren, in reaction to the sensational journalism of the yellow press. The concept was expanded to a “right to be left alone” that recognized legal tort actions for intrusion upon seclusion, public disclosure of embarrassing private facts, publicity that places one in a false light, and commercial appropriation of one’s name of likeness. Thousands of court decisions address these issues. However, much of this law was developed before the Internet age.