Allyson Haynes Stuart, Search Results – Buried But Not Forgotten
Comment by: Paul Bernal
Workshop draft abstract:
The “right to be forgotten” has gotten a lot of attention lately, primarily because of its potential to chill online speech. At the same time, there is a rise in US cases seeking deletion of online information. The problem that gives rise to the EU’s right to be forgotten is only increasing – the conflict between the self-image people want to present and the one that is presented on the internet.
The primary problem in imagining the application of a right to be forgotten in the United States is the vastly different legal background between it and the EU. In the US, information posted online is, for the most part, considered “speech” – and the First Amendment strongly protects such speech from any limitation, be it a restriction on what may be posted or a requirement that existing information be taken down. The internet is likened to one huge street corner, and anyone with access is welcome to post at will on his or her virtual soap box. The imprimatur of speech gives online content the golden halo of first amendment protection that has gotten only more robust in recent years. In contrast, the EU interprets the online posting of information as the processing of “data” which is owned by the individual data subject. Under the Data Protection Directive, such processing is subject to a host of restrictions. So under a system where an entity needs a purpose to gather personal information and may use it only for the duration of that purpose, it is not far-fetched to imagine a requirement that certain information be deleted under circumstances including when the data is no longer necessary for the original purpose.
So to determine whether there is hope for any such right in the US, we need to think in US terms – freedom of speech and its (few) limitations, rather than data rights and the processing of subjects’ personal information. Nonetheless, there are some ways in which our jurisprudence may be interpreted as supporting some rights to restrict the posting and continued publication of certain online content.
This article addresses the problem by using the fact that the average person does not find fault with information continuing to be located on certain websites were it not for the ease with which that information is discoverable via searching. So the true problem that most people have with sites’ refusal to “take down” certain information is that it shows up in response to searches – primarily Google searches. So I approach a right to deletion online by concentrating on the role of search engines in keeping alive information others would prefer to become “practically obscure.”
This article proposes a compromise whereby a notice-and-take down system similar to that for copyright violations would allow individuals to request that search engines cease to prominently place certain information in their “results” on the basis of one or more of the following reasons: (1) the information is no longer “newsworthy” based on its age, taking into account in particular events or information concerning a youth that are less relevant years later; (2) the information borders on defamation or false light publication based on subsequent events, such as the acquittal of a personal charged with a crime, or a finding of no liability of an entity sued for tortuous misconduct; (3) the information is unduly harmful, such as that resulting in bullying or stalking; (4) the information is untrue or defamatory; or (5) any other reason for which the continued high placement of the information subjects a person or entity to unfair prejudice.
The fact is that Google is already responding to requests to take down information outside the intellectual property realm. But it is responding to those requests in an opaque manner based on its own internal views of what requests are proper or not. There should be guidelines for those decisions so that they are not based on bias, identity of the requester, or happenstance.
The benefits of this proposal include the fact that, because it applies suggested guidelines, it avoids the constitutional problem of requiring deletion. The proposal is less logistically difficult to implement than requiring removal of information from all websites, because it only guides the action that Google already takes in response to take-down requests. Finally, while the proposal falls well short of requiring erasure like the EU’s proposal of a right to be forgotten, it addresses the primary concern of most people who seek such deletion – decreasing the prominence of such information in response to a search request.