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Krulwich Wonders: Is The 'Right To Be Forgotten' The 'Biggest Threat to Free Speech On The Internet'?

Friday, February 24, 2012 - 09:06 AM

From left, Irina Shaykhlislamova and Yesica Toscanini at Sports Illustrated Swimsuit Issue Party in 2007. From left, Irina Shaykhlislamova and Yesica Toscanini at Sports Illustrated Swimsuit Issue Party in 2007. (John Sciulli/WireImage for Bragman Nyman Cafa)

This Is Yesica, the tipsy one on the right. She's a Sports Illustrated Swimsuit model from Argentina. She is very nice to look at.

But if you live in Argentina, you can't look at her. Put Yesica's name in Yahoo! Argentina and what do you get? You get nothing. A blank. She's not there.

Yesica and her lawyers have exercised a legal right now dubbed "The Right to Be Forgotten" that allows you to remove embarrassing pictures or information you put on the web — and do it permanently, totally. Which means you can tell Yahoo! or Google or Facebook, "I don't want that there anymore. I want this to be forgotten. You have the image or the email or whatever in your computers. Remove it. And if you don't, you are breaking the law."

Yesica demanded that Yahoo! remove certain pictures, and presumably a court has ordered Yahoo! to block Yesica searches while the two sides appeal.

Argentina is not the only place with a Right to be Forgotten. Last month, 27 nations in the European community announced new legislation that would make it the law across Europe.

Dangerous, DANGEROUS...Don't!

Immediately, lawyers, especially American lawyers, and particularly lawyers who defend free speech, began to holler. Writing in the Stanford Law Review, Professor Jeffrey Rosen of George Washington University said the proposed European legislation will seriously alter the structure of the Internet, damage companies like Google, Yahoo! and Facebook, but much more important, this legislation in its present form, he says, "represents the biggest threat to free speech on the Internet in the coming decade."


Well, here's the argument.

Let's start with those who favor the law: Vivian Reding, vice president of the European Commission, argues that everything we do — our emails, our blog comments, our e-purchases, our porn watching, the tickets we buy, the photos we share — all of it is sitting in data bases controlled in the great "Cloud." That information can, and probably will, stay in those computers forever. Yes, we put it there when we chose to search for free, mail for free, and shop online, but surely, says Ms. Reding, we should retain some control over that information. After all, it's ours (or was), and we should keep some legal right to erase the stupid, hurtful, dumb things we did or said online. I mean, why not?

Because, says Jeffrey Rosen, this law when made operational, very quickly runs amuck. I'm going to paraphrase his argument, step by step.

Forget That, Step One

Step One: You get drunk one night, and take a picture of yourself half naked, and post it on your Facebook Wall. Dumb idea, yes, but once up, it is reposted on 10 other sites, all Facebook friends. Next morning, you think, "What have I done?" You call Facebook and say, "I have just removed this picture from my site, now I want you to erase that photo so it doesn't exist in any of your servers, now and forever more."

If Facebook balks, or doesn't remove it, there will be a fine, and maybe criminal prosecution.

Any problem with this? Mr. Rosen says, no, this seems reasonable, and is what most Internet companies promise anyway. A law just holds them to it. So far, he's got no issues.

Forget That, Step Two

But now comes Step Two: You decide to visit your friends' Facebook pages, and ohmygod, when you look, you are still up there, still half naked on Amy's Wall, Andy's Wall, Alice's Wall, Tommy's Wall, Albert's Wall. They didn't take the image down.

So now you go to Facebook and you say, like Ronald Reagan at the Berlin Wall, "Mr. Facebook, tear down those pictures!" And suppose that Facebook follows orders, and notifies Amy, Andy, Alice, Timmy and Albert and two of them are off camping, one's in the hospital, and one loves the picture and won't permit Facebook to take it down.

Now what?

Should the law require Facebook to remove images from customer sites without their permission? Just because you are upset? Whose pictures are they anyway, now that they've migrated off your page? Whose feelings should Facebook honor? Internet companies want to be neutral players, like a highway; they don't want to have to adjudicate between friends. That's what mothers and courts are for. The proposed European law, Rosen argues, seems to require Facebook to become such a judge, to act and to act speedily on the aggrieved party's behalf. He argues those companies aren't remotely equipped to do that. They are tech companies; they hire engineers, not judges.

Forget That, Step Three

OK, on to Step Three. Suppose you — the once drunk and half naked one — are dating the mayor of the city, so you are, in a way, a public figure, and that image of you would be of enormous interest to voters, reporters, politicians and gossips all over town. Should Facebook keep your photo a secret now?

What if you have only dated the mayor twice, so interest in you is minimal? Different decision? Who decides? Facebook?

When Forgetting Clashes With Free Speech

You see how hard this is getting? And these aren't fables, stories like this.

Rosen describes a real case, in Germany where two men murder someone, go to trial, get convicted, serve their time, get released, and when they leave jail they look up their famous victim's name on Wikipedia, and there they are, named as his killers. They sue Wikipedia's parent company saying, in effect, "We've been to jail, paid our debt to society, we want this incident forgotten. So remove our names, not just from the German Wikipedia, take us out of all the Wikipedias."

In America, they'd be thrown out of court. We don't erase people out of history because they have a Right to Be Forgotten. That's a little too Orwellian. ("He who controls the past controls the future.") But privacy has more sway in Europe and criminals in Germany do get their names expunged in certain circumstances. That case is still being argued.

'The Biggest Threat To Free Speech On The Internet'

Rosen says that this law is too vague, and that Internet companies, faced with fines or criminal prosecution, may feel compelled to yank pictures from customer sites, erase images that should be public because the law's main aim is to protect people who've done dumb things and don't want to be haunted all their lives by one stupid moment.

But there are other values: the public's right to know, freedom of the press, the right of artists to appropriate images. And then there's the Don't Be Such a Wuss school, represented by this Internet comment from someone called "Undying Cincinattus:"

To be honest, if people are stupid enough to give their entire life story and every private detail over to the public domain of Facebook, across all of their friends' profiles and into dozens of groups run by private businesses, they should not be surprised if there is some trouble getting rid of the evidence.

I guess that's right, but as the European authors say, it's also right that if I have one stupid night, the evidence shouldn't be allowed to tick like a bomb forever in a computer somewhere, out of my reach, out of my control. Most of the time, erasing that photo isn't going to bother anyone. Some of the time, it will. Surely there must be a middle ground here.


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Comments [7]

Dan from Phoenix, Arizona

We have enjoyed a right to be forgotten for a long time - it is enshrined in the Fair Credit Reporting Act and anyone arguing against this right - odds are, would readily invoke the FCRA if their needs demanded it.
Bankruptcy, didn't pay a bill on time, or didn't pay a bill?
7 years - it comes off your record.
Why? Because we know life changes and people change and we don't hold people responsible for decisions which, by greater expanse of distance and time, are mistakes. This legal and ethical tradition has roots in the Talmud and in Roman law.
As to operational issues?
Filthy rotten garbage.
Facebook and Google don't need to be judges - they simply need to honor someone's request to remove content. It is as easy as a SQL statement, and as easily operationalized as a take down module.

Yes - there is a right to be forgotten.
No - it does not inhibit free speech.
Yes - you enjoy and need that right and you will assuredly invoke FCRA if a creditor reports a debt greater than 7 years on your credit record so stop being such a hypocrite.
And no - it is not remotely technically unfeasible to achieve tihs.

Oct. 11 2014 08:57 PM

Let me just throw this out there. Could the middle ground be search engines? In other words, Instead of trying to to scour everybody elses's website of something that I find embarrassing, could I just be permitted to keep it out of google? And there should be an exception for items that are in the public interest. And there would have to be a judge available to make the call.

Apr. 27 2012 03:01 AM
Cass from London

Google's Eric Schmidt thinks its possible to create a self replicating computer system which allow humans to transcend the limitations of our biological bodies and brains.

But his friends don't think its possible to construct a law which protects our privacy ? Jeffrey Rosen is worried that the EU might harm Google, Yahoo and Facebook ? Perhaps he should ask himself whether Google etc are harming the people of the EU ?

Small reminder - the world just lost $4tn directly from the propaganda efforts of US de-regulation zealots, acting in the pay of the business they wanted to deregulate. The US's credibility on deregulation equals precisely zero.

Apr. 02 2012 05:19 AM
WayneM from Canada

This is tripe.
There is not, never has been, nor ever will be a "right to be forgotten".
To acknowledge such a right is to deny responsibility for one's actions.
To deny responsibility is to deny existence.
If we all had the right to be forgotten, we could commit any crime, and then claim the right to have our actions forgotten.

Mar. 14 2012 01:48 AM

Hold your horses, there.

One may always question if laws are just and fair, after all, laws are merely the social construct of a society looking for rules to mitigate the freedom of its people. US citizens of all people should know, having amended their founding legal document at times to reflect the change of attitudes regarding what society deems insufferable behavior. For a period of time Alcohol was "tabu" in the US, and yet even having repealed the prohibition, its effects on public space are very obvious to non US citizens. Especially when they are arrested for drinking in public, because they discarded the brown paper bag. Say WHAT mister police man?

So please don't be so quick in judgement about assessing how different cultures mitigate their common use of public space. You failed to address the true reasoning behind the right to be forgotten in the article: In US public space your face and what you say becomes a public commodity. In many European cultures and thus their laws, this is not so! In Germany your face is yours alone, no matter where you are people may not take a picture of you without your permission. Here public space is not the legal issue, but the cultural choice to deny any party but yourself access to your persona. You, as a person, are granted an aura of privacy even in the public space. Hence the whole privacy issue is based on completely different paradigms about what constitutes public and what private space if you want to compare the US to Germany.

Now, Germans may be idiots at times and dig their fascism like no other, yet if they are not blaming the jews they are still reasonably rational in mitigating conflicts of interest, just like any other culture. In this different paradigm there are checks in place to ensure that the public does get access to information about a persona when it is in the public interest. Thus there are legal boundaries that determine when the public need to know outweighs the individuals right to not be a public figure - the courts have a hayday when celebrities all of a sudden no longer want to share their private space, btw - and at times the legal troubles that arise are mind numbing. But somehow no culture has yet created a legal system that were free of such troubles, we are just much more likely to notice those that run counter to our intuitions. As is the case with privacy from a US and a German perspective.

That's why it is understandable for a person who is used to being in control of their private sphere to see their right to privacy enforced in a right to be forgotten. It need not be practical in the age of digital copies, but it falls squarely within a reasonable interpretation of a European interpretation of how to protect human dignity. Human dignity, rather than freedom, btw, is the founding principle of the societal contract in Germany.

Mar. 08 2012 08:58 AM
Aušra from Lithuania

That is a very interesting legal right and, really, it is just childish. We all do mistakes, it's a mature persons' attribute - to own your mistakes. How can one random silliness haunt you your entire life?

Mar. 04 2012 03:30 PM

And here I thought SOPA was the biggest threat to the Internet.
Technically, if you took an embarrassing photo of yourself, you own the copyright to it and can prevent others from reproducing it. But if someone took a photo of you, then you don't have much say, unless maybe they use it for commercial purposes like in an advertisement.

Feb. 26 2012 01:42 PM

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