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A Right to be Deleted

An American legal journalists reacts to a German internet privacy ruling: 

Wow, Europe just doesn’t buy the American idea that free speech online is sacrosanct. Earlier this month, the European Court of Justice ruled in favor of a “right to be forgotten,” requiring Google to remove links to old and embarrassing articles about debts a Spanish lawyer had long since paid. And now a German court has come down on the side of a woman who wants her ex-boyfriend to delete nude pictures and erotic videos of her from his computer. This kind of claim would never fly in the United States—the First Amendment would trample it. That’s exactly why I’m glad Europe is building a different sort of online universe. Will it prove better or worse to strike a different balance between the competing values of preventing reputational harm and protecting free speech? I look forward to finding out. 

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There is no right to dignity in the U.S. Constitution, much less the freedom to control the development of one’s personality, or brand. You can sue someone for slander, or the publication of private facts, if defamatory posts go up about you online. But those cases are hard to win (and sometimes even to find out the identity of the poster, if he or she acts anonymously). It is also hard to get any kind of relief if someone has nude images of you even if they took them without your consentA few states have tried to address the problem of revenge porn, but this is only an initial effort. And it confronts an entrenched American tradition of treating the right to free speech as absolute. We do cherish our First Amendment.

What if the European experiment shows little speech of value to be lost—and a lot of relief from humiliation and invasion of privacy gained? Would we ever rethink our approach in the U.S.? Cases like this one in Germany raise the questions.

We seem to be witnessing the emergence of a Europe-wide legal consensus on the right to be forgotten (or in this case, deleted, since the defendant just had photos of his ex-girlfriend on his computer and had not posted them).

There are a couple of legal issues -- antitrust enforcement, for example -- in which courts all over Europe join a bandwagon to defend specifically 'European' values against American cultural influence. Which, as this case shows, can be a very good thing indeed! If European courts continue to develop the notion of Internet privacy, Big Data will have to develop programs to implement these rights. Of course they'll protest all the way, but once the model is developed, it can be also be used in the USA, if courts go along. We'll see.

Comments

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Zaungast

Btw, Andrew, what is the difference in antitrust legislation and persecution between Europe and the US?

I wasn't aware that there is any big divide, or actually that there can be any big dispute in terms of underlying principles.

Zaungast

I'm very much in favor of the European - or I'd rather put: Continental - approach that protection of individuals may take higher priority than freedom of speech. And I do support the application of this principle to online content and activities.

But as far as the recent ECJ decision is concerned, I can only say: What the heck?

They declared that EU citizens still have a claim to some (limited) level of control over material about themselves publicly available online, in particular over whether it is (still being) published. Fine, so far I can follow and I endorse the idea. Looking for an analogue to the offline world, which is often helpful, we find this would correspond to banning a newspaper or TV show from dispersing a certain information, claim, or picture in the future. Nobody can change past issues of a newspaper retroactively, but old online sources are still considered here, too; I agree because leaving them on a web server somewhat resembles issuing a new edition of that old paper every day (even if the online material it is, in fact, a newspaper article obviously published long ago).

But where does this stop? How do you define what you can request to be deleted/unlinked?
Why doesn't the Court stress the underlying principles that may lead to such a decision even in a press release? I'm pretty sure the BGH or BVerfG would have done so.
Moreover, I see that search engines (in case there is a plural to that word) also bear some responsibility; but how come we now focus on Google rather than the actual publisher or the respective material?
What about way-back machines/internet archives?

Sadly, this is not the first time that the ECJ causes more uncertainty than it contributes to a reliable legal framework. Does this indicate a cultural difference between German understanding of law and the majority within the current composition of the court, or are the judges just doing a lousy job?

I'm very concerned that strategic requests for deletion will soon become an industrial machinery, just like wiki manipulation has.

And on a completely unrelated note, I still wonder what Gerhard Schröder's natural hair color might be.

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