Last Updated on July 21, 2021 by Bright Past

Right to be Forgotten

One of the great challenges of living in the age of the Internet is dealing with the long trail of information that’s left behind every day by every person who treads there. While it’s nice to look back on an anniversary or a big day on your Facebook wall, the Internet is also full of memories that a lot of folks would rather forget. Most people at some point have had a wild night that they’d sooner just disappear down the memory hole, but the Internet and social media now create a situation where those things just sit there, waiting to be discovered by future employers, business partners, or clients.

One way this problem has been addressed is through the implementation of rules guaranteeing a “right to be forgotten.” The European Union has led the way in adopting laws that address this issue in the Internet age, beginning with implementing rules that guaranteed media companies would delete information if it was no longer considered to be current and relevant to the life of a particular person. This includes making sure that search engines and other systems that scan the Internet can no longer access images and records that might include disparaging or unwanted information about a person who has since moved on with their life. The EU has since expanded the concept, and it is now considered a fundamental human right for citizens of European countries.

The right to be forgotten should be seen as distinct from a core right to privacy. In some cases, the right to be forgotten extends to things that aren’t covered by the right to privacy. For example, if an individual commits a criminal offense that becomes a matter of public record, that fact is not covered by any modern definition of a right to privacy. It may, however, be covered by a right to be forgotten once the offender has put the matter behind them.

When Does This Right to Be Forgotten Apply?

The right to be forgotten or also known as the right to erasure is the concept that provides the civil right to individuals to request to remove their personal information from the internet. However, there are specific cases where it applies. 

This right to be forgotten applies in the following cases:

• If the person’s data is no longer important.
• When an organization relies on an individuals’ consent to process the data and they withdraw it.
• In case the data is used for direct marketing purposes.
• If the data is processed unlawfully.
• If the data is processed for legitimate interest as the justification but there’s no other overriding legitimate interest. 

For any of the above cases, an individual holds the right to request to remove their data from the internet under the right to be forgotten. 

United States Stance

While the EU has done a good job of promoting the ideal of a fundamental right to be forgotten, the United States has lagged, especially in terms of keeping up with the challenges of the Internet era. In the strictest sense, the US actually has some of the oldest rules on the planet regarding the right to be forgotten, with appellate rulings going back as far as the 1930s that cover an individual’s right to not have past personal indiscretions revealed by other parties. The emphasis in American law has been on freedom of speech and the broader social value of public discourse. This means that generally when the right to be forgotten clashes with the right to discuss publicly available information about an individual the US courts have found that, if the information is accurate and widely available at one time, it remains acceptable to dig it up at any later moment.

American corporations, in particular Google, the operator of the world’s largest search engine, have also been resistant to the idea of the right to be forgotten. Even within the EU jurisdiction, Google has made multiple attempts to sidestep the rules governing the right to be forgotten. This started with claims that it wasn’t a media company, and then when the scope of the rule was expanded to include so-called data controllers, Google attempted to skirt that claim too.

Can You Be “Forgotten”

The solution that has emerged throughout much of the world has been reliance upon reputation management firms. What a reputation manage company does is first to identify sources of trouble for individuals and businesses and then to attempt to have that information removed. This begins with a politely worded email to the operator of a website or a media company. It can, however, expand to other actions. This can include efforts to respond directly to derogatory statements made online or posting of positive statements on behalf of the individual or company. In most cases, a website operator may not even be aware of the damage that has been done, and many will make an effort to remove the offending item from the web. A reputation management firm can also help a client track down and eliminate things that are within their control, such as old posts on Twitter and Facebook that might be causing trouble.

In the abstract sense, it’s easy to believe both sides of the argument. Many Americans firmly believe that if something is a fact and a matter of public record, that it’s open to debate in perpetuity. At the same time, it’s easy to see how hard it might be for a person or even a business to move beyond a single bad act in an age when everything is permanently indexed and tracked by companies like Google and Microsoft.

The question of what actually counts as “public information” is also more difficult to parse than one might expect. For example, most people don’t think of their Facebook profiles as being part of the public record in the same sense as the police blotter of their local newspaper. However, in practice, this is how social media is treated by the courts.

The right to be forgotten remains a contentious issue throughout much of the world. For the person whose online reputation has been harmed, it’s not such an abstract discussion. People should be able to move on from their mistakes without having to worry that future employers, partners and friends will uncover and expose them. The Internet is ubiquitous, and it has a long memory. Without a legally recognized right to be forgotten, it’s up to the individual or business in question to hunt down every little bit of information out there and try to remove it. That’s a lot of work to ask of any one person or enterprise.