The right to be forgotten in the US

FIRST & FOREMOST

In recent years, the "right to be forgotten" has jumped from the cloistered world of law reviews to the front pages of newspapers. This is largely the result of the Court of Justice of the European Union's Google Spain decision. There, the CJEU ruled that individuals could force search engines to remove links to articles about them (a process known as "de-listing") that are "inaccurate" or, even if true, are "inadequate, irrelevant or no longer relevant, or excessive," unless there is an overriding public interest in the search results remaining public. In 2018, the EU's General Data Protection Regulation will go into effect and essentially codify -- and expand upon -- the right to be forgotten recognized in Google Spain. Outside of the EU, courts in a number of other countries, including Canada, India, South Korea and Argentina, have recognized a right to be forgotten analogous to that created by Google Spain.

So, what about the United States, can we expect to see a right to be forgotten here? The short answer is "no." There are a handful of statutes and judicial decisions that some might strain to characterize as small steps in the direction a limited right to be forgotten. For example, California has an "online eraser" law, which allows minors -- and only minors -- to compel certain websites and apps to remove content that the minors themselves previously posted. Cal. Bus. & Prof. Code Section 22581. Occasionally, a rogue judge may grant an injunction providing targeted relief akin to a right to be forgotten. Some scholars have advanced potential conceptual support for a right to be forgotten in a smattering of timeworn decisions where courts allowed individuals to pursue claims against publishers based on publications concerning decades-old convictions and bankruptcies that those courts deemed no longer "newsworthy." And two New York state legislators recently offered a bill to create a state right to be forgotten similar to that in Google Spain.

However, there are a number of legal barriers against recognition of a right to be forgotten in the United States. First and foremost, there is the First Amendment and Supreme Court caselaw interpreting it, including Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), Smith v. Daily Mail, 443 U.S. 97 (1979), Florida Star v. BJF, 491 U.S. 524 (1989), and Bartnicki v. Vopper, 532 U.S. 514 (2001). Those cases, along with decisions circumscribing the tort of public disclosure of private facts, support the principle that the publication of truthful information can only rarely be punished criminally or civilly. Under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, the publication of defamatory information is only sanctionable under certain circumstances. Even as to speech that has been adjudicated and found to be defamatory, there is a split in authority regarding whether the First Amendment permits courts to issue a permanent injunction prohibiting such speech going forward.

Second, Section 230(c) of the Communications Decency Act, 47 U.S.C. Section 230, provides an additional layer of immunity to intermediaries such as search engines that publish speech created and developed by others. Courts in the United States have consistently held that Section 230 bars claims against search engines based on linking to allegedly tortious material. The vast majority of courts have also held that Section 230 immunity includes not just immunity from liability for others' speech, but also from requests for injunctive relief seeking the removal of such speech. See, e.g., Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 698 (2001) ("claims for declaratory and injunctive relief ... fall squarely within" Section 230's grant of immunity); but see Hassell v. Bird, 247 Cal. App. 4th 1336 (2016), review granted September 21, 2016 (a case analyzed in my November 2016 Daily Journal column). Interactive service providers sometimes voluntarily agree to remove links to content if, for example, they are presented with a legitimate court order adjudicating the speech as tortious. But U.S. courts generally have resisted efforts to judicially compel providers to do so.

While we are highly unlikely to see a right to be forgotten recognized by U.S. courts, foreign courts could issue rulings that threaten to impose one on U.S.-based entities, at least with respect to links to articles about residents of those foreign countries. A case pending before the CJEU is slated to decide whether a French court can order search engines to de-list articles about EU residents not just in France or on internet domains primarily directed to French or EU audiences -- but on websites and domains globally, including in countries such as the United States where search results are themselves constitutionally protected speech. A Canadian case from earlier this year poses a similar threat. Search engines have fought such efforts, and the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. Section 181, provides certain protections against foreign judgments that are inconsistent with the protections of the First Amendment or Section 230, although such protections are of limited practical value to U.S.-based entities with assets, operations, and personnel overseas. Thus, there is reason for concern that the CJEU might disregard international comity and seek to unilaterally impose the EU's right to be forgotten on the rest of the world, including the United States.