When Spanish lawyer Mario Costeja “googled” his name, a news story about his former debt appeared. Costeja had paid the debt long ago but the story continued to follow him. He sued a local Spanish newspaper and Google, asking the court to delete the record of his former debt. He did not claim the debt was factually untrue but that he had a right to be forgotten. In May 2014, a European court required that Google delete links connecting Costeja to his debt, and for the first time formally recognized the right to be forgotten. In the short time since the court’s ruling, Google has fielded 293,898 requests to deactivate more than 1 million links and has deleted over 40% of those, approximately 373,000 links. Deleted content – for now – disappears only from searches on European domain names, but pending E.U. legislation calls for worldwide applicability of the right to be forgotten.
This Article suggests that the right to be forgotten is emblematic of the ambitious and ultimately flawed European approach to privacy law in the digital age. While informational privacy is undoubtedly important, an extraterritorial right to be forgotten harms more than helps. It allows one person on the other side of the globe to determine what the rest of us see. Its extraterritorial reach threatens to censor the Internet in its adolescence. It undermines democratic values attending national sovereignty by promoting one culture’s adherence to privacy over other cultures’ preference for free expression. It ignores a host of alternative approaches that tailor legal restrictions to the harms associated with privacy violations. This Article analyzes the conflict between free speech and the right to be forgotten, highlights the extraterritoriality and concomitant censorship implications of European privacy law, and articulates alternative regulatory frameworks that better balance free speech with informational privacy in the digital age.
McKay Cunningham, Free Expression, Privacy, and Diminishing Sovereignty in the Information Age: The Internationalization of Censorship, 69 Ark. L. Rev. 71, 116 (2016).