“The Right to Be Forgotten” Washes Ashore in the U.S.
Published March 2021
We all make mistakes, take foolish actions, and say stupid things. Most of the time, these errors in judgment are ephemeral: we deal with the consequences—or not—and we move on, hopefully a bit more prudent and wiser.
But in the age of the internet, past indiscretions that once would be forgotten now never really go away. But while we may have little sympathy for public officials and public figures whose failings are revealed after they knowingly subject themselves to public scrutiny, in the modern era these online archives contain information on all of us that we may wish to stay in the past.
In 2014, the European Court of Justice gave citizens of European Union countries a partial remedy for this dilemma. Based of the E.U.’s protections of personal privacy—way beyond any such protection in the United States—the court held that individuals could request that search web sites remove “inadequate, irrelevant or no longer relevant” information about them from their search results. This so-called “right to be forgotten” does not remove the underlying information from the web; it only allows for removal of the search result listing, and only upon request of the individual involved. And the search sites are the ones who determine whether the information meets the criteria for delisting.
The delisting only applies on site targeted at E.U. countries. Thus results need only be removed from google.fr, Google’s website for France, but not its American-targeted site, google.com. An effort by France to get the delistings to apply worldwide was rejected by the E.U. court.
There is consensus that implementation of a broad “right to be forgotten” in the United States would run into the First Amendment problems, since search web sites, like other publications, have the right to determine what content they will include and exclude.
But California has adopted a limited “Erasure Law,” which requires web sites and online services to allow minors to “remove or request and obtain removal of content or information” that they previously posted. And in 2020 a bill in the New Hampshire legislature would have required news media to update, retract, or correct online articles about a criminal proceeding after an acquittal, dismissal, or finding of not guilty, or be liable for damages for not doing so. There was a similar proposal in New York in 2017.
In January the Boston Globe announced its “Fresh Start” program, which allows individuals to request updating or anonymization of past coverage of them in the newspaper’s online archive. The same month, the Bangor Daily News announced that it would consider requests to remove stories of old crimes (five years for misdemeanors, ten for felonies) by non-public figures from Google search results for its site. (Articles will still appear in searches done on the newspaper’s own site.)
These come after the Cleveland Plain Dealer began a program in 2019 that allows those whose records of minor crimes have been expunged by the courts to remove their names from archived news stories. The paper recently received a grant from Google to research how to automate the process. The Atlanta Journal-Constitution apparently has a similar program.
A Pew study found wide support for such policies, with 74 percent of U.S. adults saying it is more important to be able to “keep things about themselves from being searchable online” than being able to “discover potentially useful information about others.”
Media ethicists have expressed mixed opinions on these programs. And while they do not raise First Amendment questions as long as journalism outlets impose these policies on themselves, they could inspire government officials and legislatures to try to impose them by law, which would create lots of First Amendment concerns.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.