02/13/12
A Grave New Threat to Free Speech From Europe Jeffrey Rosen
At the end of January, Viviane Reding, the European
Commissioner for Justice, Fundamental Rights, and Citizenship, announced a
sweeping new privacy right: the “right to be forgotten.” The proposed right
would require companies like Facebook and Google to remove information that
people post about themselves and later regret—even if that information has
already been widely distributed. The right is designed to address a real and
urgent problem in the digital age: It’s very hard to escape your past on the
Internet now that every photo, status update, and tweet lives forever in the
digital cloud. But the right to be forgotten takes a dangerously broad approach
to solving the problem. In fact, it represents the biggest threat to Internet
free speech in our time.The new right’s intellectual roots can be found in French law, which recognizes le droit à l’oubli—or the “right of oblivion”—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. (In America, by contrast, publication of someone’s criminal history is protected by the First Amendment.) Now that the Internet records everything and forgets nothing, European regulators have concluded that the difficulty of escaping one’s past is not merely a problem for criminals—but instead applies to everyone.
In endorsing the new right, Reding downplayed its effect on free speech, and press accounts have been similarly reassuring. In a post at The Atlantic, John Hendel wrote that “the overhaul insists that Internet users control the data they put online, not the references in media or anywhere else.” But the regulations that were actually proposed on January 25 are not limited to personal data people have posted themselves; instead, they create a much broader right to delete personal data, defined broadly as “any information relating to a data subject.”
In a widely cited blog post last March, Peter Fleischer, chief privacy counsel of Google, noted that the right to be forgotten, as discussed in Europe, can apply in three situations, each of which proposes progressively greater threats to free speech. The regulations that the European Commission proposed in January are troubling because they extend to all three.
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