While Facebook has had some recent success in Europe vis-à-vis its policies – this week winning a challenge in Germany against its “real names” policy – the EU currently has several proposals on the table that have the potential to seriously impact Facebook’s data collection and business practices. One particularly interesting proposal is the establishment of a “right to be forgotten.” First proposed by European Commissioner for Justice Viviane Reding last year, and expected to be voted on this summer, the right to be forgotten would require companies that collect or host personal information online to delete such information upon request. While this new right may seem an attractive way to protect online privacy and enables one to escape the past – perhaps memorialized in embarrassing Facebook pictures – it has been hotly debated, and fiercely opposed this side of the Atlantic.
Critics worry that the proposed right will essentially be a right to rewrite history, and furthermore, will pose a serious threat to freedom of speech. As currently formulated, the right-to-be-forgotten proposal defines the personal data one may request taken down as “any information relating to a data subject.” Law professor Jeffrey Rosen worries that the proposed right may allow a person to demand deletion of not only Facebook photos that person posted herself, but also photos others post that include the person, and also more generally (and problematically), information others post to the internet about the person, whether it is true or not. Thus, Google’s Peter Fleischer wonders if, under the proposed regime, “someone else posts something about me, do I have a right to delete it?” If the final formulation of the right to be forgotten allows an individual to demand a takedown of truthful information posted by another, obviously there are major freedom of expression concerns, and as Rosen points out, the freedom and openness of the internet will be seriously inhibited.
While the scope of the proposed right to be forgotten may very well be too broad, it should be noted that the proposal will continue to be debated in the coming months before enactment, and it is possible the EU may in practice interpret the right narrowly. Imperfections aside, the EU’s proposed policy illuminates the notable trend of Europe taking online privacy seriously and engaging with the difficult issues of this arena more substantively than has the United States. With a few exceptions, the online privacy policies of American companies are voluntary and no major progress has been made toward federal legislation and regulation in this area. While the current administration advocates the creation of voluntary industry privacy standards, Silicon Valley’s vigorous lobbying in Brussels shows how much is at stake when it comes to privacy policies and practices and suggests that like the EU and US companies, the US government should more seriously engage these topics.
It will be interesting to see how the debate in Europe affects the final formulation of the right to be forgotten. It will also be interesting to see how this debate affects US tech titans who generate a considerable amount of revenue in the EU, not to mention how it influences the US government’s approach to privacy issues. Here’s hoping this strong focus on privacy makes its way to our shores.