Right to Be Forgotten: Overview
The Right to Be Forgotten is a legal principle that enables individuals to request the removal of certain links and information about their past from internet search results. This concept gained prominence after a 2014 ruling by the European Court of Justice, which asserted that search engines could be compelled to remove links to potentially harmful or irrelevant personal information. The ruling established a formal process for individuals to seek delisting, contributing to privacy and data protection laws within the European Union's General Data Protection Regulation (GDPR).
Supporters of the Right to Be Forgotten argue that it is essential for protecting privacy and combating harmful content, such as revenge pornography. Conversely, critics, including free speech advocates and journalists, contend that it poses risks to transparency and public knowledge, particularly concerning public figures and accountability. Concerns also exist about the vagueness of the law and its potential for abuse, allowing individuals, including politicians and criminals, to erase negative aspects of their histories.
The implementation of this right is complex, especially in the context of the global internet, as the European protections currently apply only to users within the EU. Efforts to expand the right internationally have sparked debate over sovereignty and free speech. The conversation around the Right to Be Forgotten continues to evolve, with similar initiatives emerging in other countries, reflecting broader concerns about privacy and justice in the digital age.
Right to Be Forgotten: Overview
Introduction
The right to be forgotten, or right to erasure, is a principle in which people seek to have aspects of their past hidden from internet searches. The issue came to prominence beginning in 2014, when the European Court of Justice (ECJ), the highest court of law for the European Union (EU), ruled that companies that run internet search engines could be asked to remove links to websites by people that believe such sites either misrepresent them or are relaying potentially harmful, but irrelevant, details about their pasts. In cases where such requests are approved, the search engines no longer provide links to the barred sites, although the sites would still exist in their original forms. The concept was later expanded to include news publishers' websites.
While this concept has gained the backing of groups supporting increased privacy laws, alternatively, free speech advocates argue that these regulations amount to a form of censorship. These advocates suggest that making it harder to research the pasts of certain people inhibits the rights of people to have a full knowledge of facts at their disposal. There are also concerns about the process used to determine what content is delinked and who made the requests. Additionally, the nature of the internet to cross international boundaries has led to controversy about the potential reach of such legal decisions.
Understanding the Discussion
Anonymization: Techniques used to remove or obscure personally identifiable information about one
Deindexing: Also known as delisting or dereferencing, the removal of a hyperlink from a list of search results; deindexing does not change the original source webpage or website.
Geo-blocking: The use of geographical data to prevent or limit users' access to certain information.
Relisting: The reordering of search results to prioritize the present-day status of the data subject.
Background
The internet has long been regarded as both a bastion of information and a possible curse, where potential past mistakes or legal issues may remain easily discoverable and thus potentially damaging. The value of information versus the right to privacy has long been one of the recurring debates about the reaches of the internet's power. This issue also highlights differences in cultural attitudes about free speech and privacy between Europe and the United States.
Many European nations have strong sets of laws devoted to promoting data protection. Article 8 of the European Convention on Human Rights enshrines a distinct right to personal privacy. Such laws have been applied to American companies doing business in European nations. However, such powers are largely regarded as a violation of the First Amendment to the United States Constitution that grants the right to free speech. As an outgrowth of the European laws, the principles of a right to be forgotten began to be formulated. This legal concept would allow people to use data protection laws to make past transgressions found online harder to discover. In a surprise legal decision, in 2014 the ECJ validated online privacy as an aspect of existing data protection laws.
The legal precedent established by the ECJ was the result of a case brought against Google Spain (the Spanish division of the American internet giant) by a Spanish man named Mario Costeja González. The case, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos and Mario Costeja González, was born out of a series of events beginning in 1998. Costeja fell into debt over his failure to pay his required social security in the late 1990s. The Spanish government ordered the seizure of some of his assets, resulting in a real estate auction to pay these debts. To promote the auction, the Spanish government had announcements published in a regional newspaper. These announcements became part of the online archive of the newspaper.
Years later, when Costeja did a search of his own name, the links to the auction were among the first to appear on Google's search engines. He worried that his past financial difficulties would continue to affect his present reputation, so he asked Google Spain and the newspaper to remove any links between his name and the auction. He further contacted the Agencia Española de Protección de Datos (AEPD), Spain's official body responsible for reviewing data protection, and asked the agency to force Google and the newspaper to respond to his complaint. While the newspaper was protected under Spanish law, Google was not. The AEPD ordered Google to remove any links to the announcements on its search engine.
Google sued in Spanish court, saying that it was not responsible for the content of the materials published by the newspaper and that, as an American company, it was not under the jurisdiction of Spain's data protection laws. After two years of court hearings, the ECJ ruled in Costeja's favor, setting a precedent in such matters. Like the US Supreme Court, the ECJ is the final legal authority on law in EU member states, and its ruling cemented the right to be forgotten as a legal right. The policy was included in the EU's General Data Protection Regulation (GDPR) framework, which took effect in 2018.
As a result of the ruling, a formal process was put in place to initiate requests to hide articles listing personal data. Applicants may submit requests to have specific links removed. Complainants must include verification of their identity and provide adequate cause for why the hyperlinked information may be damaging. Once a request has been granted, Google (or whichever search engine in question) notifies the sites in question about the removal of such links but does not disclose the identities of the applicants.
Providing legal protection in Europe for a right to be forgotten proved controversial. Many journalists noted that the legal language of the Costeja case was vague. It lacked clarity over what types of information could be removed from search engines and how to make judgments as to what qualifies as a legitimate example of a right to be forgotten. As a result, there have been fears that this right could be abused. For instance, given the vagueness of the legal ruling's language, it was possible most or all requests to remove links might simply be granted as a money-saving solution that avoided potential future legal issues. The result could be that any party, regardless of whether they fit the profile of individuals the ECJ intended to assist, would be able to “erase” aspects of their past. Politicians who did not want voters to be aware of past indiscretions or criminals who wished to whitewash their past activities might be able to benefit from such rules. However, between May 2014 and January 2024, Google received requests to eliminate links to approximately 6.1 million pages. Of those delisted, about 92 percent were intended to hide articles that revealed sensitive personal details, such as the contraction of HIV (human immunodeficiency virus), and were not what would be regarded as abuses of the right to forget ruling.
Right to Be Forgotten Today
Supporters argue the policy is crucial in combating harmful content, such as so-called revenge pornography distributed against the subject's will. Still, there are concerns about the potential threats to the public's freedom to know. Journalists worry that such laws make it harder to do legitimate background checks of public figures such as politicians or businesses with potential conflicts of interest.
One of the most pressing ongoing concerns about the policy is whether and how it should be applied internationally, given the cross-border nature of the internet. Advocates for the EU policy noted that the protections only applied to web searches from IP addresses within the European Union; those searching from elsewhere or EU-based searchers using virtual private networks (VPNs) to mask their location could still access any controversial content. French regulators led a push to expand the right to be forgotten globally, which Google strongly opposed. Objections to an international application of the policy included questions of national sovereignty and security, as well as the potential impact on free speech. In January 2019 the ECJ provided Google and its allies with an important victory, with a court adviser opinion suggesting that the right to be forgotten was not required to apply worldwide.
In 2023, an ECJ ruling found that right-to-be-forgotten protections extend to new sites as well. Other European court interpretations resulted in search engines being required to delist results shown to be demonstrably inaccurate, if so requested, and being barred from notifying the site owners or managers as to the reason their webpages were delisted. Observers raised concerns over how the former requirement would affect parodic or satiric content, which is often false but with a humorous, not factual, intent. Still other considerations relating to the right to be forgotten included medical information, such as cancer survivorship, and false responses from generative artificial intelligence (AI) software such as ChatGPT that could damage individuals' reputations.
Meanwhile, the right to be forgotten and the debate surrounding it have spread beyond the EU. Legislation similar to the GDPR was subsequently enacted in India, Argentina, and the Canadian province of Quebec. Efforts also were made to codify the right to be forgotten in some US states, Australia, and Canada. Certain news organizations have also voluntarily undertaken right-to-be-forgotten initiatives, such as the Atlanta Journal-Constitution and the Boston Globe. Some advocates have sought protections for children's privacy in particular, arguing that they should be allowed to make and learn from mistakes and that child influencers on social media should have the right to be forgotten when they become adults. Others see the matter as an issue of social justice, particularly relating to racial inequities in the criminal justice system.
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