Since we were children, those of us who grew up in the Internet age were warned that the Internet never forgets—meaning, anything put on the Internet will never go away. However, in recent years that warning has not held quite as true thanks to the right to be forgotten.
First recognized by the European Court of Justice in 2014, the right to be forgotten dictates that an individual is entitled to submit a “de-indexing request” and thus have a database or search engine delete links to information about him or her that is “inaccurate… inadequate, irrelevant or no longer relevant, or excessive.” This right stems from an individual’s right to privacy, which the court held in extremely high regard. Search engines may be required to de-index certain information even if the information is accurate and its presence on the Internet is completely lawful. However, if, after examination, a search engine determines that there is a legitimate public interest in the information, which outweighs the privacy interest of the requesting individual, it may deny a de-indexing request. Though a database or search engine might de-index information by removing the link to it, the website actually hosting the information is not required to take it down. For example, if an individual submits a successful de-indexing request for a newspaper article about him or her, Google will have to remove the link from its search results, though the article can remain on the newspaper’s website. In the first year after the European Court of Justice’s decision, Google fielded 253,617 de-indexing requests to remove 920,258 links; around forty percent of those requests were approved.
This high regard for the right to privacy in Europe stands in contrast to First Amendment protections in the United States, which make it unlikely that a right to be forgotten will ever be established here. A right to be forgotten would punish search engines for listing information protected by the First Amendment. Just as the First Amendment protects information implicated by a de-indexing request, so too does it protect a search engine’s acts of collating and publishing such information. Despite this rigid restriction, however, Assemblyman David Weprin and state Senator Tony Avela have introduced bills in the New York State Assembly and the New York State Senate that attempt to replicate the right to be forgotten for New Yorkers. These bills have not yet been voted on, so it is unclear how they will fare. It is important to note that Google does already de-index some information in the United States, for example claims based on privacy torts, credit reporting rules, revenge porn, social security number disclosure, bank account number disclosure, and copyright infractions.
Proponents of the right to be forgotten claim that it is a necessary response to the rise of the Internet. Embarrassing information that in the past would have been hidden deep in archives or records, or that’s spread would have been limited to gossip, is now forever preserved on the pages of the Internet; the right to be forgotten helps individuals reclaim the privacy to which they used to be entitled. Proponents also point out that data collection and surveillance have been central themes in Europe’s past dictatorships, and worry that allowing this breach of privacy will open the door for similar regimes.
On the other hand, critics of the right to be forgotten argue that it is a new form of censorship. Though the information itself remains online, it becomes much more difficult to find and opponents thus argue that this may cause people to collectively “forget” events that have actually occurred. One online publication likened it to the “memory hole” from the novel 1984, into which an old newspaper article was thrown, amongst other government-discrediting information. Moments later, an agent of the Though Police declares about the newspaper article: “I do not remember it.” This article points out that, as embarrassing or inconvenient as certain information might be, it is a part of history, and citizens have the right to know, and thus to access, history.
Other critics point out difficult territorial and jurisdictional issues related to the right to be forgotten; the Internet is largely border-less, so how should a European right affect what someone in the United States will encounter during an online search? Peter Fleischer, Google’s global privacy counsel, posits that “no one country should have the authority to control what content someone in a second country can access.”
The right to be forgotten is not limited to Europe: Canada, Argentina, Mexico, and India are among the countries to have considered implementing the right to be forgotten. It remains to be seen how far this right will spread and the extent to which a de-indexing request in one country might affect an Internet user’s search results in another.
Lauren Maxfield is a second-year student at Columbia Law School. She graduated from Lehigh University in 2015 with a degree in International Relations.