'Right to Be Forgotten' Legislation Attempts Foothold in New York
Is it about privacy or about government censorship? Maybe that's a false choice.
The state of New York wants to tell you what's appropriate to post online and what should be removed. The concept behind the European Union's "right to be forgotten" has crossed the Atlantic, and two state lawmakers in New York want to attempt to institute it here.
The "right to be forgotten" in the European Union originated from a court ruling demanding Google and search engines remove links to a story that embarrassed a Spanish man because it detailed a previous home repossession. The story was not factually inaccurate. He insisted it was no longer relevant and that it embarrassed him, and the court agreed he had the right to have the information censored from search engines.
Since 2014, search engines like Google have received hundreds of thousands of requests to have links to news reports removed and not because there's anything factually incorrect about them, but because the people within them are embarrassed by having the information public.
Now, in New York, Assemblyman David Weprin and State Sen. Tony Avella (both Democrats) are attempting to implement such a law in the United States.
The bill (readable here) appears remarkably far-reaching. It would allow people to demand that identifying information and articles about them to be removed from search engines or publishers if the content is "inaccurate," "irrelevant," inadequate," or "excessive." And yes, there are potentially fines involved ($250 dollars a day plus attorney's fees) for those who don't comply. Here's how the legislation defines the rather vague justifications for removal:
[C]ontent, which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in the light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester's professional, financial, reputational or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester's role in regard to the matter is central and substantial.
This would put the courts in the position of having the authority to declare what is or isn't relevant for the public to know. Reason asked First Amendment attorney Ken White of Brown, White & Osborn (and also of Popehat fame) for his analysis of the bill. He did not hold back in an emailed statement:
This bill is a constitutional and policy disaster that shows no sign that the drafters made any attempt whatsoever to conform to the requirements of the constitution. It purports to punish both speakers and search engines for publishing—or indexing—truthful information protected by the First Amendment. There's no First Amendment exception for speech deemed "irrelevant" or "inadequate" or "excessive," and the rules for punishing "inaccurate" speech are already well-established and not followed by this bill. The bill is hopelessly vague, requiring speakers to guess at what some fact-finder will decide is "irrelevant" or "no longer material to current public debate," or how a fact-finder will balance (in defiance of the First Amendment) the harm of the speech and its relevance. The exceptions are haphazard and poorly defined, and the role of the New York Secretary of State in administering the law is unclear. This would be a bonanza for anyone who wanted to harass reporters, bloggers, search engines, and web sites to take down negative information, and would incentivize such harassment and inflict massive legal costs on anyone who wanted to stand up to a vexatious litigant.
Also of relevance: The law extends the statute of limitations for defamation complains for online content in a way that pretty much all but removes them. The clock for the statute of limitations for defamation claims wouldn't start ticking until the defamatory statement has been removed from the internet, meaning that publishers could be sued for content posted years ago. White noted that this change "encourages and incentivizes legal harassment."
But not all First Amendment attorneys are opposed to the idea of the "right to be forgotten." CNN contributor Marc Randazza (who just recently won a case defending a doctor's right to critique a type of Alzheimer's treatment) has written in support of bringing the concept to the United States. He told Reason that he still supports a right to be forgotten and thought the New York bill actually didn't go far enough to allow citizens' to have information about themselves deleted from social media over time. But he also didn't believe this New York law would survive a legal challenge. The European Union does not have the same type of free speech First Amendment protections that exist in America.
"Even if it gets signed, it is pre-empted by federal law and will be struck down the first time someone tries to use it," Randazza responded in an e-mail. "How is a New York state law going to be enforced against a Silicon Valley company? Good luck with that."
Additional analysis from Eugene Volokh at The Washington Post here. And the New York Post details a recent revenge porn case being used to justify these kinds of legal efforts.
