As researchers, we tend to assume that public records are permanent. Even in cases of expungements or record purges, there is typically a docket report or some type of index entry left behind as evidence a record existed. However, the “right to be forgotten” movement, which has already gained legal precedence in the European Union, is challenging that notion when it comes to web-based publications. In this blog, we’ll discuss what the “right to be forgotten” consists of and what it means for U.S.-based researchers.
The “right to be forgotten” is broadly defined as the right to have negative information about a private person removed from web-based searches and news articles. The European Union has regulated the processing of personal data since 1995, when the European Data Protection Directive (Directive 95/46/EC), which has served as the legal basis for Internet protections for individuals, was adopted. The “right to be forgotten,” as it is now known, was formally established in the EU in 2014, when the Court of Justice of the European Union (CJEU) ruled against Google in the case of Mario Costeja González. The ruling found that Internet search engine operators are responsible for the personal information that appears on web pages published by third parties, and as such search engines must consider requests from individuals to remove links to web pages that result from searches on their name if the search result(s) “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed.” Google has challenged attempts to expand the reach of the EU’s right to be forgotten law and recently won a case before the Court of Justice in September 2019, which established that the privacy law cannot be enforced outside the borders of the EU.
There have been efforts to expand the right to be forgotten law to the U.S. as well, with the Consumer Watchdog group filing a Federal Trade Commission complaint against Google in 2015 seeking to allow users to petition to have search engine links decoupled from their names. One public opinion poll at the time claimed that 9 in 10 Americans favored a right to be forgotten law. Nonetheless, U.S. courts have not established a precedent for a right to be forgotten, which has left U.S. web-based publications to navigate requests on an individual-by-individual basis.
The podcast Radiolab broadcast a show recently about one newspaper’s – the Cleveland Plain Dealer – attempt to navigate the “right to be forgotten” by allowing requests from readers and then convening a meeting of staff to consider the requests on a case-by-case basis. The Plain Dealer’s web version, Cleveland.com, launched the project in response to numerous readers who claimed that they’d been “blocked from improving their lives by the prominence of Cleveland.com stories about their mistakes in Google searches of their names.” The editors at the paper talked about how they have to balance the paper’s place as “the first draft of history” with the newfound permanence of the Internet age, whereby a person’s worst mistake can be a simple Google search away.
Until a U.S. court or legislature chooses to wade into this topic, researchers must confront the patchwork approach that web-based publications have taken to the right to be forgotten. Many web sites now offer a version of this service to readers, which underscores the importance of understanding the scope of what you are searching. Researchers must now ask themselves: what is the paper’s policy towards a right to be forgotten? Do articles include notations when they’ve been changed? The right to be forgotten also illustrates the necessity of obtaining primary source documents (i.e. court records that may not have been expunged), as news articles become more subject to revision after publication.