Learning From Europe's 'Right to Be Forgotten'

As the United States debates the precarious state of privacy rights in light of the NSA's domestic surveillance programs, American law could benefit from the underlying principle of the "right to be forgotten" -- dignity.
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In 2008, millions of Internet users got a penetrating glimpse into the sordid sex life of Max Mosley, the then-head of Formula One racing, when British tabloid News of the World released secretly filmed videos of him engaging in a distinctly S&M-themed "sex orgy" with several prostitutes.

Mosley successfully sued the tabloid for the breach of his privacy, yet a win in the analog world has done little to protect him in the digital age. Even after successfully suing hundreds of websites to remove the illegally obtained videos of his sexy party, like the mythical hydra, they continue to rear their heads.

Fortunately for Mosley, European privacy laws respect an individual's dignity and have given him the legal grounds to sue Google in Germany and several other countries, and could even compel the Internet giant to filter out the raunchy videos.

Under the current EU Data Protection Directive, Mosley has the right "to object to the processing of any data relating to himself." His case could be further strengthened by a controversial privacy law under consideration by the European Commission: "the right to be forgotten," which would allow individuals to force tech companies to delete all the data it has on them.

While the implications of allowing individuals to raise objections to any links, content, or media are legion and its legality already in question, as the United States debates the precarious state of privacy rights in light of the NSA's domestic surveillance programs, American law could benefit from the underlying principle of the "right to be forgotten" -- dignity.

For Europeans, "dignity, honor, and the right to private life" are among the most important of fundamental rights -- "mainly the right for the (moral and legal) integrity of a person not to be infringed and for a sphere of privacy to be maintained and distinguished," explains University of Zurich Law Professor Rolf Weber.

Despite the American myths that tout the individual as the pillar of society, European privacy laws have a more deeply rooted respect for individuals as evidenced by Europe's long tradition of prioritizing people over newspapers, photographers, and more recently, tech companies.

For instance, in the 19th century, famed French author Alexandre Dumas successfully sued a photographer who sought to profit from racy pictures he and his lover had posed for in private. A Parisian appeals court ruled that even if Dumas and his lover agreed to the publication of the photos, they still retained the right to withdraw their consent as privacy and dignity trumped commercial rights.

"Private life must be walled off in the interest of individuals, and often in the interest of good morals as well," the court argued.

In an analysis of the case, Yale Law Professor James Whitman reasoned, "one's privacy, like other aspects of one's honor, was not a market commodity that could simply be definitively sold."

Perhaps a quaint notion, this humanistic interpretation of privacy is far more empathetic than the loosely defined laissez-faire American conception, which Supreme Court Justice Louis Brandeis famously described as the "right to be left alone."

To contrast these two conceptions of privacy, take for instance the 2004 European Court of Human Rights ruling that found German tabloids had violated Princess Caroline of Monaco's privacy by publishing photographs of her and her children.

"Photos appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution," the court argued.

In contrast, in 1975, the California Supreme Court upheld the right of journalists to publicly out Oliver Sipple as a gay man after he stopped an assassination attempt on President Gerald Ford. Despite his repeated requests to journalists to keep his sexual orientation private, the court argued that Sipple was a public figure and therefore surrendered much of his privacy rights.

Sipple's outing led to his parents' discovery that he was gay, a fact he had kept hidden, which ultimately led to ostracization from his family, depression, and alcoholism. In this case, by upholding the freedom of expression, Sipple was neither given the "right to be left alone" nor "dignity, honor, and the right to private life."

American laws frequently prioritize free speech at the expense of individual rights. For example, mug shots are considered public information and therefore their publication is protected by the First Amendment, giving rise to an entire industry where websites publish thousands of mug shots, publicly shaming those depicted and linking their search engine results to an embarrassing photo regardless of their guilt or innocence.

Meanwhile, in Europe, the "right to be forgotten" can be traced back to French law, which acknowledges le droit à l'oubli -- or the "right of oblivion" -- which allows a convicted criminal who has served out their sentence to protest the publication of the facts of their conviction.

In considering the "right to be forgotten" in America, the question isn't whether individuals like Max Mosley should have the ability to compel search engines to filter out undesirable content, but why it takes a high-profile lawsuit before individuals are given a say in their digital identities.

In matters concerning one's reputation and dignity online, the burden of proof is placed on the individual, who is already at a disadvantage with little say in how their personal data is distributed, disseminated, and to who.

Tech giants and government agencies parse through mountains of personal data that reveal everything from consumer preferences, location data, and search habits to the very content of our emails with little input beyond an individual's consent. With this all or nothing decision, individuals are left with limited control over their data once they click "yes," so it is no surprise that corporations and the government are continually violating privacy rights.

It's time we asserted control over our data, and by drawing on the European conception of privacy, Americans could have a legal weapon to wrestle control of our digital identities.

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