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Europe's 'Right to Be Forgotten' Threatens Free Speech

Senior Fellow and Director, Center for the Economics of the Internet
Legal Fellow, Center for the Economics of the Internet
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The European Data Protection Board recently closed a comment cycle on guidelines for the European “right to be forgotten” under the General Data Protection Regulation, or “GDPR.” The new guidelines list the word “right” 15 times and “duty” 15 times, as rights and duties are easily created commodities. Such is the supposedly profound role of self-envisioned government truth arbiters in the modern era.

Because of this supposed “right,” Europe today is not dissimilar to Oceania, the infamous Orwellian thought-control state depicted in 1984. In the novel, protagonist Winston Smith spent his days doctoring newspaper articles and historical photographs, and in doing so literally rewrote history. So too did Soviet workers during the reign of Joseph Stalin. Even today, North Korea routinely engages in similar practices.

Thanks to the European “right to be forgotten,” this longstanding tradition of government censorship and historical revisionism is alive and well across much of the continent. And if we’re not vigilant, it could spread to American shores too.
Europe’s descent into madness began in 2014, when the European Court of Justice initially found a modern “right to be forgotten” in European law. As a result, individuals could petition Google to remove articles from its search results under a wide variety of circumstances.

The rationale for this European “right” is as follows: the Internet is unique, and one’s online reputation is paramount. Thanks to search engines like Google indexing the Web, embarrassing content might be closely associated with one’s reputation via a search result. Balancing the interests of the public’s right to access this information against a person’s right to shape his online reputation, the person’s right to privacy—and thus the right for the embarrassing content to be “forgotten”—is paramount and should win out. Or so the argument goes.

Of course, a “right to be forgotten” is anathema to American observers, as it clearly violates our First Amendment. If I see Adam doing some activity, and tell Bob that this event took place, Adam cannot claim a “right to be forgotten”—or utilize any such law or “right”—to limit my freedom of speech in recounting that event. Indeed, just as one cannot indiscriminately remove books from library shelves, one also cannot demand that others cease lawful speech simply because that speech reflects poorly upon him.

Not so in Europe. Since 2014, Google has received nearly 900,000 requests to remove almost 3.5 million URLs from its search results. Under the European “right to be forgotten,” Google granted nearly half of these requests.

And just what has Google expunged from its search results? In one instance, Google removed an article detailing the escape of a schizophrenic patient—who was previously found guilty of murder—from a mental hospital. In another, Google removed 7 articles detailing an individual’s aiding and abetting an attempted terrorist attack. Three articles detailing a minor’s murder of “a close family member” were also removed. And Google removed 4 articles detailing a former bank clerk’s conviction for stealing money from elderly customers’ bank accounts.

It gets worse. In more recent years, Belgian and Italian courts have affirmed and expanded this “right,” allowing individuals to demand that newspaper archives and other original content sources actually remove online content altogether. In the Belgian instance, a newspaper was forced to alter an archival version of a 1994 article detailing a doctor’s conviction for drunkenly killing two individuals with his car.

The Italian court, meanwhile, ordered a news blog altogether remove an article detailing an altercation involving a restaurant owner who stabbed his brother, as it was supposedly harmful to the restaurateur’s reputation. According to the court, after only two years, the public’s interest in the content of the article had expired “just like milk, yoghurt, or a pint of ice-cream.” The blog owner complied with the order and removed the article, but facing mounting legal debt and hundreds of similar removal requests, he decided to shut down the site entirely.

Thankfully, this European nightmare cannot be enforced extraterritorially. But dreams of similar censorship have already seeped into the American imagination. 88% of Americans support a “right to be forgotten.” And while a 2017 New York state effort at legislating a “right to be forgotten” was ultimately abandoned, at least one American news website has begun erasing history proactively, fearing that to do otherwise would “reinforce[] rac[ial] stereotypes about crime.”

The most recent conduit for an American “right to be forgotten” is California’s new privacy law, CCPA. Mercifully—and to perhaps spare the California AG one of no doubt countless legal challenges to the law—CCPA includes a specific carve-out for deletion requests concerning the exercise of free speech. Unstated, however, is that efforts to use the power of government in this manner to limit speech necessarily violate the First Amendment.

The European “right to be forgotten” is a limitation on free speech, one of the most basic American civil rights. Protecting speech, rather than subjecting it to Orwellian government control, is the better course for America.

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