Last month, Viviane Reding, the European Commissioner for Justice, Fundamental Rights, and Citizenship, proposed a new framework for data protection in the EU. One of the most controversial elements of this proposal is the “right to be forgotten.” The basic idea is that individuals should have control over their data on the Internet, including the ability to correct inaccurate information and the ability to remove information that they no longer wish to have publicly available. While this sounds innocuous, the right to be forgotten entails as its corollary the duty to forget or to erase, which suggests censorship to advocates of free speech. Peter Fleischer, Google’s Global Privacy Counsel, has described the effect of the EU proposal as making him “the most powerful censor on the planet.”
The right to be forgotten creates a clear tension between two values that many of us concerned with civil liberties share: the protection of free speech and the protection of privacy rights on the Internet. On one level, this conflict points to a cultural and legal difference between the United States and the European Union in terms of the relative valuation of free speech protections and privacy protections. The challenge on this level is how to reconcile legitimate differences of valuation in a medium that easily spills over national borders. We have seen several instances in which Internet companies have been forced to accommodate widely varying degrees of free speech protection, and perhaps the right to be forgotten can be forced into this framework. The long-term effect may be to create stronger national boundaries on the Internet–a move away from the idealism of its early days, but perhaps something that we should have expected as the Internet matures into a space that is central to commercial, political, and social life.
The more interesting question, however, concerns the nature of forgetting as more information is put on digital media and made accessible from anywhere with an Internet connection. The origins of the right to be forgotten are in European laws protecting those convicted of crimes, including a German law from 1973 that limits the publication of the names of criminals who have completed their sentences. Such laws were intended to signal that serving a sentence erased a criminal’s debt to society, but have raised new problems with the availability of information on the Internet.
Fundamentally, the accessibility and permanence of personal information on the Internet creates an unprecedented shift in an individual’s control over self-presentation. Information deemed unflattering can stick around, as can more favorable information. The right to be forgotten would give the individual control over self-presentation by creating the power to order that personal information be erased. This goes beyond well beyond the passive act of “forgetting.” To the extent that the right to be forgotten encompasses the right to prevent others from speaking truthfully about oneself, it creates a clear conflict with basic free speech protections.
But we should not be so quick to dismiss privacy protections on free speech grounds. A more limited version of this proposed right may protect the ability to control information about oneself without infringing on the speech of others. Solutions may be more architectural than legal—for example, making unwanted information available, but less accessible, requiring some expenditure of effort. We ought to be able to build an information regime that protects the interests that we value without prematurely sacrificing one value for another out of expediency and failure of imagination.
As it currently stands, the conflict between the right to be forgotten and free speech rights may devolve into a conflict between two sets of actors. Those who demand that their data privacy be protected may skew toward those on the margins: those with criminal records who find that the ease of a Google search prevents them from starting over, or teenagers who find that the consequences of “youthful indiscretion” may attach for longer than they expected. Those in favor of free speech may skew toward the new media companies. Given these sets of actors, the outcome of any conflict between these competing rights seems foreordained. If we take seriously the challenge of the EU’s proposed right to be forgotten, we can make debates about speech and privacy trade-offs productive.