Learning Gateways: The Right to Be Forgotten

Vol. 12 Spring

In January 2012, the European Union announced a proposal to create a sweeping new privacy right—the “right to be forgotten.” The right, which has been hotly debated in Europe, is part of proposed data protection regulations. In this lesson, students will learn about the proposed “right to be forgotten,” and then discuss its implications for real-life scenarios.

  1. Introduce students to the proposed “right to be forgotten” using the EUXTV video clip, “EU wants the right to be forgotten’” (1:19).
  2. Discuss the proposed "right to be forgotten" with students:
    • Do you think people should have a "right to be forgotten"? Why or why not?
    • How might the proposed laws benefit consumers?
    • Do you think there are any disadvantages to the proposed laws?
    • Do you think the proposed laws could affect freedom of expression? Why or why not?
  3. Ask students to read this exceprt from legal scholar Jeffrey Rosen, published in the Standford Law Review.

    Although Reding depicted the new right as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.
  4. Discuss the excerpt with students:
    • How do the ideas in this excerpt compare with the ideas presented in the earlier video?
    • What is the author's position?
    • Do you agree or disagree with this author?
  5. Explain to students that they will analyze some real-life cases that have appeared in European courts related to current privacy laws and the proposed "right to be forgotten."
  6. Present the following case studies to students, either as a class, or in small groups:
    Case A In 1990, Bavarian actor Walter Sedlmayr was brutally murdered. Two of his business associates, Wolfgang Werlé and Manfred Lauber, were convicted and imprisoned for the crime. Upon being paroled, Werlé and Lauber were upset that the Wikipedia entry about Sedlmayr identified them as his killers, even though their conviction was a matter of public record. Werlé and Lauber sued Wikipedia, demanding that their names be removed from the site as Sedlmayr’s killers. Though the case was high-profile at the time, and Werlé and Lauber became celebrities, now that they are out of prison, they want to “be forgotten.”
    Case B Mario Gianni is the owner of Los Alfaques, a campground in Spain. He is upset because when someone uses the search engine Google to find out information about his campground, they learn about a disaster that occurred there in 1978, during which a tanker truck carrying fuel, sprang a leak as it was driving by, exploded, and killed more than 200 people instantly. Gianni sued Google, because the references to the disaster are hurting his business, as “potential users might lose interest in going to the campsite.” He claims that he has a right to demand that the “negative” links be removed, and the 1978 disaster “forgotten.”
    Case C Virginia Da Cunha is a famous pop star in Argentina. Before she was famous, she posed for racy pictures, which were posted online. She recently sued search engines Google and Yahoo to take the photos down, arguing that they violated her “right to be forgotten.” Google argued that the company could not comply technologically with the demand, and Yahoo said that the only way they could comply would be to block all sites referring to the star.
  7. Discuss each of the cases with students:
    • Does this person have the right to be forgotten?
    • What do you think is an appropriate resolution to this case?

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Insights on Law and Society is edited by Tiffany Middleton. She can be reached at tiffany.middleton@americanbar.org.