As Right to Be Forgotten Evolves in EU, Will It Find Its Way into U.S. Law?

 

By Rosemarie Lally, J.D. July 22, 2019
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​The "right to be forgotten," a rapidly evolving legal concept in the European Union (EU), may eventually wend its way into U.S. federal law but not in the immediate future, according to several European data-privacy experts.

The right to be forgotten allows people to ask that Internet search results for their names that include personal information, such as home addresses or details of criminal convictions, be removed. The concept has been included in the EU's data-protection laws since 1995 but wasn't formally acknowledged by the Court of Justice of the European Union until its 2014 decision in Google Spain SL v. Agencia Española de Protección de Datos Reference.

"The constitutional right to free speech has a heavy weighting in the U.S., while in Europe we tend to have a stronger belief in the fundamental right to data privacy," according to Kelly Hagedorn, an attorney with Jenner & Block in London. "There have been moves toward instituting new rules on data privacy in some states, such as California, but I think it will be a long while before the U.S. as a whole moves toward protecting individual data-privacy rights to the same extent as we see in Europe."

Carsten Kociok, an attorney with Greenberg Traurig in Berlin, noted, "The General Data Protection Regulation [GDPR] acts as a model law for countries in Asia and U.S. states developing data-privacy rules, such as the California Consumer Privacy Act and other state initiatives launched in the past several months. Many concepts in those proposals, such as the right to opt out and the right to access an individual's stored data, originated in the GDPR."

Simon McMenemy, an attorney with Ogletree Deakins in London, believes the European trend toward privacy rights eventually will extend to the U.S. He cited privacy initiatives in California and Denver.

Decisions on the Right to Be Forgotten

In the case of Google Spain, the court interpreted the EU's data-protection directive as creating a qualified right to be forgotten, and ruled that search engines were required to balance someone's request for data removal against the public interest in keeping the data. People and corporations have a right to request the delisting from search engines of "inaccurate, inadequate, irrelevant or excessive" information, the court held, but the public's right to such information and free-speech rights must also be weighed.

One year later, France's data-protection regulator tried to extend the EU's right to be forgotten to all of Google's websites, no matter where they are accessed. Google fought the order and an accompanying fine, arguing that its application of the right is already effective for more than 99 percent of searches in France. On appeal, the company contended that the EU is obliged to minimize legal conflict with other jurisdictions, such as the U.S., where freedom of speech generally prevails over privacy concerns. The European Commission, the EU's executive arm, joined Google in opposing the expansion beyond European borders of the right to be forgotten.

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Landmark Case in England

In the first case to consider the right to be forgotten in England, NT1 & NT2 v. Google LLC, the High Court of England and Wales applied the Court of Justice of the European Union ruling in 2018, balancing one's right to privacy against the public interest. The court, examining the claims of two businessmen convicted of criminal offenses years earlier who had asked Google to delist their personal information, determined Google had to remove links to articles about the "spent" criminal conviction of one of the claimants from search results for his name. However, it rejected a similar claim from the other claimant, who had been jailed for a more serious offense. If an offense is minor and someone has served his or her sentence, the conviction is considered spent, and employers can't inquire about it.

Although both situations involved spent convictions, the judge made a distinction between the two claimants.

The conviction of one of the claimants had not involved actions related to consumers, customers or investors. He had pleaded guilty and showed remorse. The relevance of his conviction to investors, staff or customers was deemed "slender to nonexistent." He had a young family to support. He gave more credible evidence about the interference of his conviction in his business reputation, and a news article linked to him was inaccurate. Hence, there was no plausible risk of repeated wrongdoing, the judge said.

On the other hand, the other claimant had not shown remorse and remained in business. Further, the judge found that "the information [sought to be erased] serves the purpose of minimizing the risk that he will continue to mislead, as he has in the past."

Hagedorn commented that the judge followed Google Spain in reaching his decision. But while the EU generally starts from the position that the rights of an individual are paramount, an English court will usually start by placing equal weighting on the rights of both the claimant and the defendant.

McMenemy noted that the English decision simply shows that the result "will always be fact-dependent, as it should be." He added that "some common humanity, what you might call mercy, also seemed to have played a part in the judge's decision to treat [the two claimants] differently, given that [one] had shown remorse and had a young family, whereas [the other] seemed not to have learned the error of his ways."

Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.

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