The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
N.Y. bill would require people to remove 'inaccurate,' 'irrelevant,' 'inadequate' or 'excessive' statements about others
[UPDATE 3/22/17: The Senate bill has apparently just been withdrawn (through the enacting clause being stricken); the Assembly bill remains pending, though I hope that it's functionally dead, too.]
From New York Assembly Bill 5323, introduced by Assemblyman David I. Weprin and (as Senate Bill 4561 by state Sen. Tony Avella), a bill aimed at securing a "right to be forgotten":
- Within 30 days of a "request from an individual,"
- "all search engines and online speakers] shall remove … content about such individual, and links or indexes to any of the same, that is 'inaccurate', 'irrelevant', 'inadequate' or 'excessive,' "
- "and without replacing such removed … content with any disclaimer [or] takedown notice."
- " '[I]naccurate', 'irrelevant', 'inadequate', or 'excessive' shall mean content,"
- "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 light of the financial, reputational and/or demonstrable other harm that the information … 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 with regard to the matter is central and substantial."
Failure to comply would make the search engines or speakers liable for, at least, statutory damages of $250/day plus attorney fees.
So, under this bill, newspapers, scholarly works, copies of books on Google Books and Amazon, online encyclopedias (Wikipedia and others)—all would have to be censored whenever a judge and jury found (or the author expected them to find) that the speech was "no longer material to current public debate or discourse" (except when it was "related to convicted felonies" or "legal matters relating to violence" in which the subject played a "central and substantial" role). And of course the bill contains no exception even for material of genuine historical interest; after all, such speech would have to be removed if it was "no longer material to current public debate." Nor is there an exception for autobiographic material, whether in a book, on a blog or anywhere else. Nor is there an exception for political figures, prominent businesspeople and others.
But the deeper problem with the bill is simply that it aims to censor what people say, under a broad, vague test based on what the government thinks the public should or shouldn't be discussing. It is clearly unconstitutional under current First Amendment law, and I hope First Amendment law will stay that way (no matter what rules other countries might have adopted).
Remember: There is no "right to be forgotten" in the abstract; no law can ensure that, and no law can be limited to that. Instead, the "right" this aims to protect is the power to suppress speech—the power to force people (on pain of financial ruin) to stop talking about other people, when some government body decides that they should stop.