Contemporary Practical Alternatives to a “Right To Be Forgotten” in the United States

Abstract

The “right to be forgotten” (RTBF), perhaps more accurately described as a “right of erasure”, first emerged into mainstream public consciousness and practice with the European Court of Justice’s May, 2014 ruling in the Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González case. A targeted and bespoke process for requesting the removal of specific search engine results only emerged in the months immediately following that ruling. The final contours and scope of that process are still not fully settled, and will likely continue to evolve as the EU’s General Data Protection Regulation takes effect in May 2018. However, the concept of an individual’s right or ability to exercise some control over publicly available information about themselves dates back well prior to Mr. Costeja’s lawsuit, and extends well beyond the EU. The Costeja case itself did not purport to create a new right, only to include search engine results as relevant to and controlled by the EU’s 1995 data protection law as “data controllers”. The discussion of some sort of analogous right in both legal academia and in the courts dates back to at least 2006, if not to much earlier, perhaps even to the early part of the 20th century, using an expansive definition of the cultural concerns underlying RTBF. In tandem with that global history of a de facto “right to be forgotten”, there is a parallel history of mechanisms and practices intended or used to achieve this “forgetting”, ranging from standard lawsuits to norms, to —more recently— the subversion of other, unrelated, official affordances for the removal or obscuring of online material. Using examples from the Lumen project’s database, this paper will examine some of the recent ways in which individuals in countries without a codified right of erasure have sought to be “forgotten” by using online content removal mechanisms originally grounded in other purposes and legal regimes, such as copyright, trademark, and defamation. The paper concludes with a speculative discussion of what effect, if any, the existence and repurposing of these alternative mechanisms might have on the development or rejection of a separate RTBF jurisprudence, and what form that regime might take were it to be adopted.