Why Europe’s New “Right to Be Forgotten” Rule Must Be Forgotten

In the end of January, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, said that the Commission proposed a new data protection regulation called “the right to be forgotten.” This rule, though sounding innocuous, is probably the “biggest threat to free speech on the Internet,” as law professor Jeffrey Rosen put it.

The right to be forgotten requires social networks, such as Facebook and Google, to comply with the requests of their users and delete items that these individuals have published on the Internet. If the companies refuse the users’ requests, the EU could fine these companies for up to 2% of their global income.

The right to be forgotten certainly goes against our First Amendment right to freedom of speech by handing government the power to force third party web companies to delete what individuals have stated about other individuals. Suppose you copy an image of me that I have placed on my Facebook account, and you repost it on your blog. Government forcing you to take down that picture – even though it is of me – is a violation of your First Amendment rights. Certainly, constitutional rights guaranteed in America do not apply in Europe. However, it runs counter to the borderless nature of a global Internet built on the free flow of information, in addition to posing a problem for Internet sites in fully complying with the new regulations across international borders.

In addition to free speech concerns, the rule sets up a high regulatory burden and conflicting standards for online privacy between America and Europe. The new regulatory burden placed on these companies is practically impossible to uphold. On this new rule, Marc Dautlich, partner of British law firm Pinsent Masons, stated that it “would mean that users could demand that social media networks such as Facebook erase any of their comments, not just from the network itself but the entire web, which would involve unprecedented co-operation with search engines to achieve.” Businesses will now also be forced to inform regulators and those affected by large-scale hacks to be informed immediately. Matt Warman of The Telegraph notes that this could impose an impracticable burden on firms and move to discourage further development of new, inventive services.

The right to be forgotten, though only meant to be enforced in the European Union, will undoubtedly have a global effect. Websites that operate transnationally will be forced to comply with these new regulations in order to avoid the risk of an outrageously excessive fine should any EU-based user requests be looked over. As Western nations fight to protect free speech online in China and Middle Eastern countries, the E.U.’s “right to be forgotten” renders these calls unprincipled and insincere. The “right to be forgotten” is extremely dangerous and has the potential to result in a much less free Internet.

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