At the end of January, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right—the “right to be forgotten.” The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation. Although Reding depicted the new right as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.
In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud.
This is interesting:
In a widely cited blog post last March, Peter Fleischer, chief privacy counsel of Google, notes that the right to be forgotten, as discussed in Europe, often covers three separate categories, each of which proposes progressively greater threats to free speech. And the right to be forgotten, as proposed at the end of January, arguably applies in all three of Fleischer’s categories. . . .
But the right to delete data becomes far more controversial when it involves Fleischer’s second category: “If I post something, and someone else copies it and re-posts it on their own site, do I have the right to delete it?” Imagine a teenager regrets posting a picture of herself with a bottle of beer on her own site and after deleting it, later discovers that several of her friends have copied and reposted the picture on their own sites. If she asks them to take down the pictures, and her friends refuse or cannot be found, should Facebook be forced to delete the picture from her friends’ albums without the owners’ consent based solely on the teenager’s objection? . . .
Finally, there is Fleischer’s third category of takedown requests: “If someone else posts something about me, do I have a right to delete it?” This, of course, raises the most serious concerns about free expression. The U.S. Supreme Court has held that states cannot pass laws restricting the media from disseminating truthful but embarrassing information—such as the name of a rape victim—as long as the information was legally acquired.
..It’s hard to imagine that the Internet that results will be as free and open as it is now.
What fascinates me is how I approached these issues back in 2007 when I wrote Omniveillance.
The tort I proposed was similar. If Google posted some image that met certain conditions, you could sue to have it removed. I proposed a tort to remedy the violations of a right I dubbed, the Right to your Digital Identity. Snazzy, huh?
The right to your digital identity is violated when an individual or organization records and reproduces an image of another without consent using a visual or auditory enhancing device while (1) the party recorded possessed a reasonable expectation of privacy to not be recorded; (2) the matter recorded would be offensive to a reasonable person; (3) the recording is intentionally widely transferred or disseminated through any electronic medium to any electronic format; and (4) the recording is not newsworthy, where a newsworthy recording (4a) has social value, (4b) minimally intrudes into ostensibly private affairs, and (4c) the party that is recorded voluntarily acceded to the position of public notoriety.
The tort was limited to images recorded by a company (such as Google), so did not apply to the examples discussed above, where you post something online; but it does apply to the third category identified. My tort looks at whether a reasonable expectation of privacy (Jones!). It looked at whether something is offensive to a reasonable person. It considers the manner in which the information was disseminated (and takes into considering things like social networks). It balances newsworthiness, private affairs, and voluntary ascension to public notoriety.
Like an elephant, the Internet never forgets
I don’t even know if I still agree with what I wrote. My understanding of free speech has evolved quite a bit. I don’t know. But I’m glad 1L Josh was already thinking about these deep issues.