Speaking of forgetting: Analysis of possible non-EU responses to the right to be forgotten and speech exception

• Published in: Telecommunications policy Vol. 38; no. 8-9; pp. 800 - 811
• Main Author: Ambrose, Meg Leta
• Format: Journal Article
• Language: English
• Published: Kidlington Elsevier Ltd 01.09.2014; Butterworth-Heinemann
• Subjects: Acceptance; Acceptances; Access to information; Chilling; Claims; Conflict; Control; Controllers; Courts; Data integrity; Data protection; Electronic media; EU directives; Europe; European Union; Expression; Freedom of information; Freedom of speech; Information policy; International comparisons; International privacy law; Interoperability; Jurisdiction; Law; Legal studies; Privacy; Regulation; Right of privacy; Right to be forgotten; Search engines; Speech; Telecommunications; Telecommunications policy; U.S.A; United Kingdom > UK; United States > US; International privacy law; Expression; Data protection; Right to be forgotten
• ISSN: 0308-5961; 1879-3258
• DOI: 10.1016/j.telpol.2014.05.002

The right to be forgotten is contentious partly because it highlights the difference between U.S. and E.U. prioritization of information privacy and freedom of expression. Recently, a moderate amount of research has been undertaken to explore the conceptual issues underlying the right to be forgotten and how the right conflicts with the U.S. first amendment, but little has been written about its impending implementation and interoperability issues. While this is an E.U. Data Protection Regulation proposing to grant rights only to E.U. citizens, the world has a stake in this right for a number of reasons. This article will analyze the options for non-E.U. countries and data controllers, namely the U.S., to react to the establishment of such a right, now called “The Right to Erasure”. These options are the following: (1) adopt the same right to erasure for themselves, (2) ignore right to erasure claims, (3) comply with erasure take down requests, or (4) seek to establish a modified version of the right to erasure. In assessing these options, the article will first address the reality of a right to erasure under U.S. law. Second, it will discuss compliance and jurisdictional issues if the right is ignored. Third, the article will look at the impact of full acceptance of the take-down regime, focusing on the potential chilling effects and abuse. Finally, it will propose that non-E.U. countries encourage a right to erasure that is less disruptive: a right to erasure that allows data subjects to directly request removal of data held privately by data controllers and a right to oblivion for publicly available information that is enforced similarly to defamation claims, requiring a court order. •Analyzes possible responses to the right to erasure to assess international interoperability.•Argues for separate procedural treatment of the two forms of erasure currently intertwined.•Provides a compromised version of the right that should be considered as it continues to develop.