Earlier this week I interviewed Andrew Keen about his new book, Digital Vertigo, and pressed him on his support for a ‘right to be forgotten.’ I noted that such a right would conflict with free speech rights, and he begged to differ.
"My own data, which I have published on the web, I should have a right, if I choose, for that data to go away," he said. "That doesn’t impact in any way on your right to speak."
This is a view of the EU’s proposal that I’ve heard from several folks, and I wanted to take a moment to explain why it’s mistaken. If the proposed EU right only covered information held by you that you wanted to unpublish—from Facebook, Tumblr, a self-hosted blog, etc.—then we wouldn’t need a right. Those services give you that ability right now, and if they didn’t, I don’t think folks would patronize them.
No, the right that Vivianne Redding has outlined is not a right to erase information held by oneself, but a right to erase data held about oneself. For example, in researching this post, I searched for an essay by Joris van Hoboken, an info law PhD
candidate in Amsterdam, that made a great case against the right to be forgotten. As it turns out, the blog post I was looking for had been removed. His whole site is down, perhaps for technical reasons, but perhaps because he has changed his mind and is now embarrassed by his previous views and wants them erased from the internet. Luckily, I had saved the essay in Evernote and you can see it here.
Now, van Hoboken might have the power under copyright law to make me take down the essay, but he has no right to keep me from writing about the fact that he wrote such a (potentially embarrassing) essay and even summarizing or excerpting it. That is the right that the EU would like to confer on citizens, and my right to speak is the one it wants to curtail.
The proposal does state that a “controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary for exercising the right of freedom of expression[.]” The problem with this exemption is that it creates an opportunity for the government to decide what kind of speech qualifies as legitimate expression, and which one does not. I would like to see those opportunities limited.
In his book, Keen is critical of the twittering masses who disobeyed the British High Court’s superinjunction on speaking about Ryan Gigg’s extramarital affair. Keen might think that such superinjunctions are legitimate and appropriate, and that the state should sometimes determine what content is and is not appropriate for free expression. But that’s different from pretending that a right to privacy does not conflict with a right to free speech.
Paul Bernal puts his finger on it when he writes,
[T]he cultural differences in attitudes to privacy and free speech in the EU and the US. In the EU, and particularly in Germany, privacy is taken very seriously, and the rights that people have over data are considered crucial. In the US, privacy very much takes second place to free speech – anything that can even slightly infringe on free speech is likely to face short shrift. The right to be forgotten has been very actively opposed in the US on those grounds—Jeffrey Rosen in the Stanford Law Review calling it the ‘biggest threat to free speech on the internet in the coming decade’.
Who is right? Neither, really. The right is not what its more active opponents in the US think it is—but neither has it been written tightly enough and carefully enough to provide the kind of practical, realisable right to delete personal data that the EU would like to see.
Yes, our cultural lenses do make us see free speech in different ways. And yes, maybe we in the U.S. are a bit sensitive about our speech rights. But the way the proposal is written now, we have good reason to be. It would not be too difficult to use such a ‘right’ for censorship.