First Amendment & Media Litigation
Fall 2012/Winter 2013, Vol. 17 No. 1
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Europe’s “Right to Be Forgotten” Regulation May Restrict
Free Speech
By Katharine Larsen
In January 2012, the European Commission released a proposal for new regulations on the
protection of personal data. The proposal includes provisions that would establish a unified
“right to be forgotten” across Europe. Generally speaking, a “right to be forgotten” involves
one’s right to control the public dissemination of information about himself or herself. This
information could include biographical data, financial data, one’s criminal history, photographs,
and even news articles.
Over the past few years, the nature and scope of the “right to be forgotten” has been at the center
of significant debate, with many—especially on this side of the Atlantic—expressing concern
that it could be used to “erase history” by requiring removal of true statements of fact from news
archives and analogous databases.
Overview of the Proposed “Right to Be Forgotten” Regulation
Just days before the European Commission proposal was released, Viviane Reding—the vice
president of the European Commission and the EU Justice Commissioner—sought to reassure
the public that the “right to be forgotten” would not be taken to the extreme. Reding stated:
The right to be forgotten is of course not an absolute right. There are cases where there is
a legitimate and legally justified interest to keep data in a database. The archives of a
newspaper are a good example. It is clear that the right to be forgotten cannot amount to a
right of the total erasure of history. Neither must the right to be forgotten take precedence
over freedom of expression or freedom of the media. The new EU rules will include
explicit provisions that ensure the respect of freedom of expression and information.
Although Reding’s speech seems to imply that the new “right to be forgotten” would be limited
to data that a person (the so-called data subject) had personally provided—and not to information
otherwise publicly available—the proposal itself is not so clear.
The text of the proposal suggests that the “right to be forgotten” will apply to “any information
relating to a data subject,” including each of three categories of information:
·
Information personally provided by the data subject that she wants to delete.
Example: The subject deletes an embarrassing photo she posted in her own
Twitter feed.
·
Information previously provided by the data subject that is reposted elsewhere.
Example: One of the subject’s Twitter followers copied the photo and reposted it
on Facebook, and now the subject wants it deleted.
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© 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
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Fall 2012/Winter 2013, Vol. 17 No. 1
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·
Information about the data subject that is posted by a third party.
Example: A newspaper posts an article about the subject’s misconduct, and she
wants it deleted.
Substantive Criticism of the Proposed Regulation
A significant weakness in the proposal is that it fails to provide clarity on the way in which data
falling into the third category—that is, data contained in news reports and news archives—would
be exempted from the newly established “right to be forgotten.” The prospect that data subjects
will be empowered to erase or “anonymize” the contents of historic archives is extremely
troubling.
The following example illustrates the dangerous restrictions that a “right to be forgotten” can
impose on journalists and media entities. After serving their sentences, convicted murderers
Wolfgang Werlé and Manfred Lauber successfully invoked the German “right of rehabilitation”
to pressure a number of German publications to scrub their names from online articles about
their victim, actor Walter Sedlmayr. One news entity successfully challenged restrictions on their
reporting, but for many German news organizations, it was already too late. Ironically, in
reporting that the German Federal Court of Justice ruled that the murderers’ names could remain
online, Germany’s largest national subscription daily newspaper was nonetheless compelled to
omit Werlé’s and Lauber’s names from articles on its website. One such article explains: “In
response to a cease-and-desist letter, the Süddeutsche Zeitung entered into an agreement not to
publish the names of the two convicted murderers in any future news report. This also applies to
user comments. We ask for your understanding.” [A rough English translation of this article can
be found here.]
Not surprisingly, therefore, Reding’s description of the new EC proposal immediately came
under fire by critics such as Jeffrey Rosen, George Washington University law professor and The
New Republic legal affairs editor (whose writings can be found here, here, and here). Rosen
argues that the proposal itself fails to contain the “explicit provisions that ensure the respect of
freedom of expression and information” that Reding referenced. As Rosen points out, the
proposed regulations “are not limited to personal data that people ‘have given out themselves’;
instead, they create a new right to delete personal data, defined broadly as ‘any information
relating to a data subject.’”
Ambiguous Language Creates Confusion
The concerns surrounding the “right to be forgotten” stem from ambiguity in the proposed
regulation. The provisions in the EU proposal that create and restrict the “right to be forgotten”
—Articles 17 and 21—do not squarely tackle the issue of how to protect news archives and
reporting. Article 17 of the proposal provides that the “data subject shall have the right to obtain
from the [entity or individual holding the data] the erasure of personal data relating to them” on
four enumerated grounds, but only generally references an exception for the exercise of the right
of freedom of information. Although Article 21 recognizes that the right is restricted by, inter
_________________________________________________________________________________________________________
© 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.
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alia, the protections for freedom of expression and information found in Article 11 of the Charter
of Fundamental Rights of the European Union, no further explanation is provided.
The preamble, at paragraph 121, states that the “processing of personal data solely for
journalistic purposes . . . should qualify for exemption from the requirements of certain
provisions of this regulation.” However, Article 80 goes only so far as to require that each
member state “provide for exemptions or derogations . . . for the processing of personal data
carried out solely for journalistic purposes . . .” and no definition of “journalistic purposes” is
contained in the proposal.
Thus, whereas the proposal unifies and clarifies the “right to be forgotten,” exceptions to this
right are left undefined and could take as many as 27 different forms once each member state
implements the necessary “exemptions or derogations.” Currently, any benefit that could come
from the creation of a unified and clarified “right to be forgotten” across Europe would be
undermined by the absence of any unified or clear exception for data used “for journalistic
purposes.”
Technical Criticism of the Proposed Regulation
The proposal’s ambiguities introduce another layer of difficulty—technical implementation. In a
recent technical assessment, the European Network and Information Security Agency (ENISA)
identified a range of problems that could prevent practical enforcement of the right. ENISA
properly asks how the right applies to data that “can be used to identify a person with high
probability but not with certainty” or to “aggregated and derived forms of information,” such as
statistics. It also questions what a data controller must do to “forget” the information sufficiently,
particularly where copies of the data items still can be found online. If the proposal is adopted
without addressing these issues, media entities and news archives—like all other data
controllers—will expend significant resources determining how to respond to requests from
alleged data subjects.
Conclusion
The proposal’s protections for freedom of expression and freedom of the media are inadequate.
Without substantial amendments, individuals will be able to employ their “right to be forgotten”
to silence valuable news reporting and to “erase history” by demanding the deletion of
information from historic archives, even where copies of the information are still accessible
online. This prospect is incredibly disconcerting—not only for news organizations, but also for
any proponents of unfettered publication of truthful information about matters of public concern.
Keywords: litigation, First Amendment, media litigation, "right to be forgotten," freedom of
speech, freedom of expression, personal data, news archives, European Commission
Katharine Larsen is an associate at Levine, Sullivan, Koch & Schulz, LLP in Philadelphia, Pennsylvania.
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© 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.
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