Is the Right to Be Forgotten Among Our Unalienable Rights?

We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness."
-Declaration of Independence, July 4, 1776

forgottenIn May 2014, the European Court of Justice (ECJ) held that Europeans' fundamental right to privacy encompasses the "right to be forgotten." Google Spain SL et al. v. AEPD et al., No. C-131/12 (May 13, 2014). The repercussions of the decision have been, and continue to be, phenomenal. Europeans are overwhelming Google with takedown requests; First Amendment scholars on this side of the pond debate fiercely whether the United States should recognize a similar right; and media lawyers grapple with how best to advise their clients when someone seeks to have outdated or embarrassing content removed from the Internet. Indeed, earlier this month, France's Commission Nationale de l’Informatique et des Libertés (CNIL) ordered Google to apply the 'right to be forgotten' takedown requests to all of Google's domain names, including Google.com. As the volume of personal information online abounds, and the ease with which we can access the information from a variety of sources intensifies, the issue of whether the U.S. should recognize a right to be forgotten will persist. But, where should the U.S. land on the issue?

An article published in the American Bar Association's Winter 2015 edition of Litigation posed an interesting thought – perhaps the U.S. already recognizes a right to be forgotten. Ashish S. Joshi, the author of "Leave Me Alone! Europe's 'Right to be Forgotten,'" reminded readers of a 1931 California appellate court decision that found that people have a "right to be let alone" – a right that is rooted in our "inalienable right . . . to pursue and obtain happiness." Melvin v. Reid, 112 Cal. App. 285, 289-292, 297 P. 91 (Cal. Dist. Ct. App. 1931). Melvin has since been superseded by the California Constitution, Article I, Section 1, which codified, Californians' right to privacy. CA Const., Art. I, Sec. 1 ("All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.") (emphasis added).

Indeed, effective January 1, 2015, California became the first state to enact "eraser" legislation. California S.B. 568 ("Privacy Rights for California Minors in the Digital World"). The statute permits web users under the age of 18 to delete or remove content he or she posted online. Of course, this state law will raise a myriad of interesting legal questions. What if your son, who lives in Ohio, tweets an embarrassing photograph of himself while on vacation in Los Angeles – is Twitter required to erase the tweet? Is Twitter required to erase re-tweets of the original post? Is the law discriminatory because it only protects minors? Although California is the only state thus far to enact legislation specific to the right to be forgotten, the more general right to be let alone is not new.

The idea that our right to privacy includes a right to be forgotten may not be as provocative as we once thought. Three years before Melvin, Justice Brandeis observed that the right to privacy is "the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564 (1928) (Brandeis, J., dissenting). Most (if not all) states recognize a right to privacy in some form or another – a right bred from our unalienable right to pursue happiness. According to the National Conference of State Legislatures (NCSL), 10 states have explicit provisions in their respective constitutions relating to a right to privacy - Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington. While some of these states' protections are rooted in traditional search and seizure law, or are limited to intrusion by government only, others are more general.

Though not all states have codified the right to privacy in their constitution, many states, like Ohio, have developed a common law right to be let alone. For nearly sixty years, Ohio has recognized the right to be left alone. Housh v. Peth, 165 Ohio St. 35 (1956) (seminal decision recognizing the right to be left alone, the court found that, "Personal security includes the right to exist and the right to the enjoyment of life while existing, and is invaded not only by a deprivation of life, but also by a deprivation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."). When the Supreme Court of Ohio decided Peth it followed sixteen other states that had already recognized a right to privacy. So, why is the right to be forgotten – an apparent extension of our right to privacy – so controversial?

Perhaps the advent of the Internet has roused our inner voyeur. Perhaps we see the right to be forgotten as a step backward in a world where technology is hurdling us forward at unprecedented rates. Perhaps upholding the right to be forgotten is technologically impractical. Perhaps we are fearful of allowing others to edit (re-write?) their own history. Or, most importantly, perhaps the First Amendment trumps this attack on Americans' right to free speech. Whatever the reason, those of us on the left side of the Atlantic view the right to be forgotten with much trepidation. For better or worse, though, Google Spain altered the global landscape of privacy and media law, and it is inevitable that our judicial system will struggle with the issue of whether our right to be left alone includes the right to be forgotten.

About The Author

Erin Rhinehart | Faruki Partner