JURIST Guest Columnist Sandy Davidson of the University of Missouri School of Journalism and School of Law discusses removal of a person’s past information from the Internet and the potential slippery slope this creates …

By recognizing in May “the right to be forgotten,” the European Union’s Court of Justice has stirred the Internet reform pot.

Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzales began when Gonzales lodged a complaint with the Spanish Data Protection Agency (AEPD, PDF) against a Spanish newspaper. Two pages from 1998 contained the announcement that Gonzales’ real estate would be auctioned to pay his social security debt. Gonzales argued that the attachment proceedings had been resolved and were now irrelevant. He wanted the announcement deleted. While the AEPD ruled against requiring the newspaper to delete the lawfully published information, it also ruled against Google, whose search engine provided links to the pages. The EU Court of Justice upheld that ruling.

This ruling interprets Directive 95/46/EC, which declares that “data-processing systems are designed to serve man” and must respect a person’s “fundamental rights and freedoms, notably the right to privacy…”

According to the court, a search engine’s processing of Internet data in a search using an individual’s name “is liable to affect significantly the fundamental rights to privacy and to the protection of personal data” because the results provide a profile or “structured overview” of information about the individual—”information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty …”

This reasoning is reminiscent of the notion of “practical obscurity” of information invoked by the US Supreme Court in 1989. The court denied a Freedom of Information request for a computerized FBI “rap sheet” on the grounds of an “unwarranted invasion of personal privacy.” The court said, “Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives and local police stations throughout the country and a computerized summary located in a single clearing house of information.”

The Court of Justice says a search operator’s economic interest clearly cannot justify interference with an individual’s data rights because of the “potential seriousness” of such interference. On the other hand, removing links from search results could affect “the legitimate interest of internet users.” Thus, the court calls for a “fair balance” between the interests of Internet users and individuals’ privacy rights, a balance that depends “on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary … according to the role played by the data subject in public life.”

Considering the “sensitivity for the data subject’s private life” and that the information had initially been published 16 years prior, the court held that Gonzales had established a right to have links referring to the real-estate auction and recovery of his social security debt removed from the search-engine results about him.

And so Google is left to struggle with implementation of the Gonzales ruling because the Court of Justice gives little direction on how to respond to future requests to disable links. The court does say this:

…even initially lawful processing of accurate data may … become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.

Google must create a “take down” policy in countries under EU control. But what about a “right to be forgotten” in the United States?

That “right” has not been widely recognized in the United States. It has now fallen into disfavor even in California, the jurisdiction that was its leading proponent under the Briscoe doctrine, from Briscoe v. Reader’s Digest Ass’n. In 1968 Reader’s Digest published an article about truck hijackings and named Marvin Briscoe, who had hijacked a truck 12 years earlier. The article did not indicate that the hijacking had occurred in 1956. Since then, Briscoe had reformed, but his friends and 11-year-old daughter learned about his history from the article, and they abandoned him. Briscoe sued.

Although the California Supreme Court said, “There can be no doubt that reports of current criminal activities are the legitimate province of a free press,” the court also said that Briscoe had “paid his debt to society.” The court continued:

Ideally, his neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others. … Briscoe’s past life pursues him through the pages of Reader’s Digest, now published in 13 languages and distributed in 100 nations, with a circulation in California alone of almost 2,000,000 copies.

In Briscoe, the court cited its earlier decision, Melvin v. Reid, that involved a film, “The Red Kimono,”about a reformed prostitute. The film and ads for it used her birth name, which, the court said, was “unnecessary and indelicate and a wilful and wanton disregard of that charity which should actuate us in our social intercourse….” The court explained:

…eight years before the production of “The Red Kimono”, appellant had abandoned her life of shame, had rehabilitated herself and had taken her place as a respected and honored member of society. This change having occurred in her life, she should have been permitted to continue its course without having her reputation and social standing destroyed by the publication of the story of her former depravity with no other excuse than the expectation of private gain by the publishers.
One of the major objectives of society as it is now constituted … is the rehabilitation of the fallen and the reformation of the criminal. … Where a person has by his own efforts rehabilitated himself, we, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime.

In Briscoe the court recognized the tension between freedom of the press and individual privacy but opined that “the great general interest in an unfettered press may at times be outweighed by other great societal interests. As a people we have come to recognize that one of these societal interests is that of protecting an individual’s right to privacy.” The court’s bottom line was that Reader’s Digest should not have used Briscoe’s name. However, California also strictly limited the Briscoe doctrine to cases involving reformed criminals.

Then in 2004, in Gates v. Discovery Communications, Inc., the California Supreme Court overruled Briscoe . A TV documentary had included information from court records about plaintiff Gates, who pleaded guilty to being an accessory after the fact to a murder for hire but afterward reformed and became a “respected member of the community.” The California Supreme Court agreed with the Court of Appeals, which said, “After Briscoe the United States Supreme Court decided a series of cases dealing with the same broad issue of the tension between the right to privacy and the rights of free speech and free press.” Those cases included two permitting naming of rape victims. The California Supreme Court concluded that such cases “have fatally undermined Briscoe‘s holding that a media defendant may be held liable in tort for recklessly publishing true but not newsworthy facts concerning a rehabilitated former criminal.”

In short, California’s Briscoe doctrine is dead. Most jurisdictions did not follow it, anyway. For example, in 2002 a mayoral candidate in Wisconsin thought disclosure of his felony conviction violated his constitutional right to privacy. The Seventh Circuit Court of Appeals disagreed. Likewise, in 2003 the Supreme Court of Idaho rejected a man’s invasion of privacy claim; publication of a photograph of a 40-year-old document, contained in a court file, alleged homosexual activity by him. The court pointed out that the court record was open to the public. The US Supreme Court let Idaho’s decision stand.

In 2008 a US story received widespread publicity internationally. It involved a woman who had her dead pit bull Booger cloned in South Korea. Pictures of her with the cloned pups led to her being recognized for something quite different: She was, according to the Associated Press, “the same woman who 31 years earlier was accused of abducting a Mormon missionary in England, handcuffing him to a bed and making him her sex slave.”

Would Google be forced to erase her past history in EU countries?

Erasing history rewrites history by purging the record of individual ugliness. Purification. Expurgation. Censorship. It is a slippery slope, indeed. Given the First Amendment, US media should receive more protection than that offered in countries under EU jurisdiction.

As for Booger’s owner, should she have foreseen that seeking publicity about cloning her dog would lead almost inexorably to republication of stories about her past alleged transgressions? Media do not let some sleeping dogs lie.

Sandy Davidson is a Professor at the University of Missouri School of Journalism and an Adjunct Professor at the University of Missouri School of Law, both in Columbia, MO. An expert on the relationship between media and law, she has written extensively on the need for freedom of information. She has been a panelist for the Information Policy Taskforce of the National Conference of State Legislatures, and the Associated Press Managing Editors, among other groups.

Suggested citation: Sandy Davidson, Right To Be Forgotten, JURIST – Forum, June 11, 2014, http://jurist.org/forum/sandy-davidson-right-forgotten