Europe's 'Right To Be Forgotten' Threatens Online Free Speech

An anonymous reader writes "Jeffrey Rosen, Legal Affairs Editor for The New Republic, explains why the E.U.'s proposed data protection regulation known as the right to be forgotten is actually 'the biggest threat to free speech on the Internet in the coming decade.' In the Stanford Law Review Online (there's a shorter version in TNR), he writes: '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.' According to Rosen, the 'right' goes farther than previously thought, treating 'takedown requests for truthful information posted by others identically to takedown requests for photos I've posted myself that have then been copied by others: both are included in the definition of personal data as "any information relating" to me, regardless of its source.' Examples of previous attempts this might bolster include 'efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor's Wikipedia page' and an 'Argentine pop star [who] had posed for racy pictures when she was young, but recently sued Google and Yahoo to take them down.'"

Comments

Simple: compromise

[rtfa-troll]

Sometimes the right to life threatens the right to free speech (when people want to shout "fire") sometimes the right to free speech threatens the right to free movement (when people set up web sites to track others and become stalkers). What we do is compromise and weigh up one right with another. It's not so complex. Hell it's even built into the European court systems already.

Re:Simple: compromise

[russotto]

Once you compromise on fundamentals, you're compromised. As the "shouting fire" case you allude to demonstrated; it upheld the conviction of a person whose offense was distributing pamphlets alleging that the US military draft was a violation of the 13th amendment (forbidding slavery and involuntary servitude).

So no, compromise is not always the answer. Compromise brought us from free movement to metal detectors to the TSA virtual strip search. Compromise brought us from free assembly to "free speech zones". Compromise brought us from "you have the right to remain silent" to "turn over that password". Compromise has gotten an undeserved good reputation.

Re:Simple: compromise

[TheVelvetFlamebait]

The yelling "fire" in a theatre scenario is an example of speech having negative physical consequences, contrary to those who claim that free speech is harmless. Actually, free speech is definitely not harmless, and that is one of the reasons we enshrine it so. It is a powerful weapon against corruption and conspiracy. It damages corrupt governments and other organisations. It is precisely because it is so powerful that we find it necessary in our society. But I digress. Let's get back to your issues.

First, yelling fire causes a rather urgent problem. If there really is a fire, there is no proper time to go and question the matter. This does not apply to slander and libel. Slander and libel laws are violations of free speech. Please do not use the analogy to support those (many, many people have... and been wrong).

I agree that this analogy alone cannot justify slander/libel. The situations are functionally quite different. Like I said, the fire scenario is more supposed to be an example of negative consequences from speech, not to justify specific censorship laws. At most, it should be used to open the table up to discussion about censorship laws in general, now that it has been established that there can be significant trade-offs to having absolutely free speech. To justify slander/libel, another argument, specific to these laws, is needed. Specifically, does spreading lies about a person deliberately harm that person, and does the harm from this outweigh any chilling effects that this law would cause? I think the answer to the first question is an easy "yes", but the second question is a lot harder to answer.

Second problem: why is it never the fault of the people trampling others, or the organizers who set the situation up to be dangerous to begin with? Of course, it would be quite annoying if people constantly were yelling fire... yet, false fire alarms are actually pretty common. False security lock downs, too. Essentially, at what point is it the fault of the people listening to the guy yelling fire and trampling someone? I'd say, from the moment it happens. Consider if there actually was a fire - how does the situation change? Where does the fault go for someone being trampled if it was really a fire and it happened? If it can't rest with the person raising the alarm, where is it? Was it there all along?

Fault often cannot be ascribed to a specific party. Sometimes the independent actions of several people are all causally relevant to some kind of detrimental event occurring. Sometimes there is no fault at all. As such, it's not really valid reasoning to deduce fault by eliminating various parties.

In the case of people being trampled without a fire, I would blame (in no specific order) the person who called fire, the people who trampled the victim (or who otherwise behaved in a reckless manner), the theatre for not having sufficient fire exits (if that's an issue), and the victim if there was any stupid behaviour that caused him specifically to be trampled. With a fire, I would also blame the fire (and whoever caused it), and blame the guy who called "fire" significantly less. The person who calls fire simply unleashes the inherent danger of the situation, but this does not make him blameless. His choices and corresponding actions caused the situation to be such that someone dies. Without that action, that person would have lived.

Perhaps we need a better example. Let's say I ring a very large hospital, and claim that there are several high-powered explosives hidden about the building, and that I'm going to detonate them in exactly 30 minutes. There are no explosives, but they don't know this. They proceed to evacuate the building, costing them many, many thousands of dollars, and possibly causing some of their sicker patients to deteriorate (maybe if they're in quarantine, or something like that). Where does the fault lie? It's not going to be the hospital staff for believing me. They must tak

Re:Simple: compromise

[Xest]

Your argument is based on the premise that it's more important to be able to distribute pamphlets complaining about US military draft than it is to avoid being crushed to death because some jackass thought it'd be funny to shout fire.

Both make me sick in the mouth, but you've based your argument on an assumption that I do not think necessarily holds true.

Ultimately in a world where we have compromise your life can be unfairly destroyed by government taking things too far, but in your world of absolute free speech your life can equally be unfairly destroyed, whether it's by someone getting you crushed to death by shouting fire in a crowded theatre, someone causing you to lose your job or worse by slandering you by for example publicly labelling you as a paedophile with no recourse to clear your name because suing for slander would breach their right to free speech, or not having any mitigating circumstance in court for for example punching someone for getting in your face and repeatedly making insulting, perhaps for example racist comments.

The reality is you believe not compromising and having free speech as an absolute would be some magical cure for all the problems of government abuse, but really all you're doing is trading abuse of the status quo by government for abuse by private citizens.

So personally I think it is actually about compromise, the only difficulty is getting the compromise right, because a world with absolute free speech causes just as many problems as one with compromised limits to free speech.

Fundamentally though in your last paragraph, you're not actually complaining about compromise anyway, you're complaining about failure to compromise - the laws to which you refer weren't born of compromise, they were born of governments not being introduced in the will of the populace. Ultimately this is a fault born more of terrible government, and the pitfalls of a two party state with little to separate them than an inherent problem with compromise- of course the compromising wont go to well when both ruling parties want the same things, but the solution to that is a healthier democracy and in many countries they have this by having electoral systems that support multi-party coalition governments and so forth where compromise is essential to staying in power.

It's the same here in the UK - when David Cameron said he likes First Past the Post because it provides strong governments, what he really means is "I like First Past the Post because when we inevitably get back into power in this two party state because the other party fucked up so bad the electorate have no choice but to switch to us instead I can do whatever the hell I want, even if I only got the support of less than a 1/3rd of the voting population". Weak governments are the best type of governments for the people, because as soon as they stop serving the people, they can trivially be toppled.

Really, absolutes in politics are rarely ever the best solution, they're really best left to the fantasies of wingnuts who just haven't thought things through. You may dislike the current situation, but the solution is to fix your government, not become even more militant and start demanding absolutes - polarising the debate with extreme viewpoints that have equally many flaws only makes things even worse again as your opposition strengthen their stance against you even further, and are even given the ammunition of the flaws in your plan to better do so.

And requires tracking

[saikou]

One aspect that doesn't seem to be obviously stated in the article, that in order to be certain what is related to the person who wants to be forgotten, online systems have to implement a rather tight tracking of this information. So if someone re-post picture on the Facebook, Facebook would have to check it against hashes of all other FB-hosted images to know where the origin is from (and re-share tags for all depicted users).
If I can't find something related to you -- I can't remove it.

And bonus -- multi-user content. If user A wants to be forgotten, but photo contains also users B and C, removing it might violate rights of other users (unless there's going to be a little digital eraser applied to the tagged face)

Hi. I don't see a reason for a clash.

[Anonymous Coward]

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.

Speaking as an American, I want the European version of privacy and the American version of Free Speech.

In other words, I don't want some motherfucking marketing firm tracking me to sell me their shit - and it's always shit - and sell my information to the Government because they want to track "terrorists" or whatever to justify they're existence.

Which implies the desire for European privacy. They don't need to know who the fuck I am. WTF? Speaking as an atheist in the Bible Belt, I can tell you, anonymity is a goddamn blessing.

Otherwise, I'd need a god given machine gun to defend myself against these Goddamn Jesus freaks who think they need to kill me for not believing in their Sky God.

God Damn Motherfuckers!

Wow. bullshit.

[unity100]

right to be forgotten exists in offline-world, and it did not cause any free speech issues. something which is personal information, is not something that is related to free speech. your ideas expressed, public posts made, public statements, discussions may be considered free speech. but, photographs of your son and daughter, can not.

what im i saying. taking this shit seriously : the real issue is google, facebook and similar going deprived of 2% of their annual income. that's the whole point of this anxiety.

well. we, the people dont give two shits about google or facebook's 2% annual income. they can lose it, and still sit pretty.

and, this does not have any kind of effect on the 90-100% of the rest of the internet, where content is created by small people or businesses - they are not making money selling people's personal information to megacorporations anyway. (ads are not relevant - small sites cant run all encompassing tracking networks like facebook )

Re:Not sure why this is even up for debate

[Stormthirst]

There's a difference between people knowing stuff now, and in 10 years a prospective employer looking at stuff that's on FB or Google now. What is relevant now might not be relevant later. But I know a few HR drones who wouldn't distinguish between me now and me 10 years ago.

Re:Link to racy pictures of Argentine pop star ple

[Jeremiah Cornelius]

You know,

I would be totally cool wit the idea of re-setting the entire planet to, like, 1977.

Re:Not sure why this is even up for debate

[Anonymous Coward]

in a nutshell, it means that as a civilian, you have the right to ask a company to delete your data. That's actually a good thing in that it gives power to the consumer. And I wouldn't object if Google or FB invested that 2% into a good mechanism for deleting user data.

That differs from 'free speech' dramatically. TFA blurs this distinction. It's not "free speech" when FB or Google sits on user data and is not legally required to delete it, when the user asks for it.

Rights and Responsibilities

[Adrian Lopez]

The right to be forgotten? What about the responsibility to keep one's own private information private?

I have no problem with regulating the dissemination of private information held in confidence by online services, but information published by users or by people not affiliated with the online services in question should not receive any such protection in all but a few special cases (medical and financial information, for example).

When privacy and free speech are in conflict and there's no urgent and compelling reason to keep information private, free speech should always trump privacy.

Re:Not sure why this is even up for debate

[martin-boundary]

You're broadly right, but you're missing the fact that some of the information about you is gnoing to show up without you having posted it yourself. There might be both true and false statements made by others about you, or even made by others impersonating you. There should be laws that allow you to correct that if you find out, because like you say, in 10 years time that prank statement about you that someone else made will still be around and look like the honest truth.

Whatever it is, it is not a right.

[jcrb]

So I followed the links down to the actual EU document, at which point the problem becomes clear. All the other issues aside, if it takes you 117 pages to explain a "basic right" then it seems to me that....

You're Not Doing It Right

Re:300 years and still battling

[Alex Belits]

mankind's inalienable rights, the ones the US founding fathers identified

This is precisely the problem that the rest of the world has with US and Americans.

Re:Not sure why this is even up for debate

[Opportunist]

You never know how the law or society turns out in the future. About 15 years ago it would have been kinda funny to dress as a suicide bomber for Halloween. Think it might be taken the wrong way if seen today?

All it takes is something you say or do and take a picture of is somehow being connected to some kind of criminal (or worse) behavior. Imagine the whole bull about "violent games" gaining traction again and you posting a pic of you playing some FPS game. Today, certainly no problem. But how's it going to work out in 5 years or 10? Maybe someone won't employ you because you're connected to "violent behavior".

How about letting the whole fat food craze go overboard as it usually does when people get hyped up? Consider yourself being shunned for that pic showing you wolfing down that Big Mac.

Or how about the worst case scenario, where you're in a picture with someone who later commits some kind of horrible crime? You didn't know about it, for you it was just some guy you knew, but now you're the guy who is very obviously a close buddy of a pedo. Here, I have the pic to prove it.

"Don't post an incriminating or embarrassing picture" is easily said, but you don't know today what will happen tomorrow. You don't know what pictures might come back to haunt you. So we may only post those crappy "please say cheese" lifeless pics that have been cleaned of any kind of background so they cannot, under any circumstances, be taken the wrong way?

Re:Not sure why this is even up for debate

[Gonoff]

Why should I be restricted by you? My right to privacy should exceed corporate "rights" to maximise future profit.

Re:Not sure why this is even up for debate

[AmiMoJo]

So don't post your life story on Facebook you nitwit.

So if someone makes a relatively small mistake they should be forced to pay for it for the rest of their lives? Society doesn't work like that, even quite nasty criminals are eventually forgiven and don't have to declare their crimes when applying for jobs and the like any more. Getting a bit drunk and posting some stupid pics on Facebook is a fairly minor indiscretion in comparison.

People, especially young people, make mistakes. It doesn't make them nitwits, it makes them human.

but that you voluntarily signed a contract allowing them to keep the data forever is just plain stupid.

Well apparently people signing unfair and stupid contracts is so common we had to invent consumer protection laws and contract law to protect them. There is also the fact that if a company breeches a contract your only option is to sue them which is expensive and risky, so for stuff that is blatantly abusive we legislate against it as a kind of mass civil legal action by society.

You will get modded up for ranting against all the morons living in their idiocrasy, but the need for legal protections is well established and understood.

Re:So don't post your life story on Facebook

[TaoPhoenix]

Sorry, I think a bigger risk is at stake.

You're right in the "coldly rational" sense that the old Economists used to go by. The problem is that there are a couple of smart evil critters at senior manager positions in these companies, who discovered that 20 billion dollars of influence can create the greatest Social Hack of the last 25 years. America forgot that the chief problem of small insular towns with only 200 people in them was that you could never escape The Day That You Insulted Mrs. Chadwick, because Nobody Insults Mrs. Chadwick.

With the advent of city conditions, people became too busy working to worry about The Disgraceful Remark. In a Post Insult-To-Mrs. Chadwick World, the world ... in a city... would be ... the same!

Now with the social services, the search engines are creating a passive version of that Long Memory, that does nothing for you when you behave, (mostly), but records forever when you don't.

Combined with outright malicious abuse by both the companies and the government, people aren't "just choosing" anymore. They need a little help.

Re:Not sure why this is even up for debate

[Dan541]

However it's still a historical fact. If someone writes about you on a blog, truthfully (I don't advocate the publishing of inaccuracies) then what right to you have to censor them in 10 years time?

This seems like it's set to become the next DMCA. Don't like what someone wrote; censor them.

Re:300 years and still battling

[isorox]

i can't f'ing believe this crap .. is it ever going to end??
i have a worrisome feeling that mankind's inalienable rights, the ones the US founding fathers identified, will eventually be completely squished under a boot of tyranny. I mean every year there's a relentless assault on it. It's starting to feel like we're all huddled inside the Alamo. Except there's no Texian Army to avenge it.

You are an american, and you believe that mankind has specific inalienable rights. That's fine. The rest of the world may disagree, or broadly agree, but disagree to some parts (the right to bear arms for example). I'm certain that the rest of the world couldn't give a monkeys about the 10th amendment for example, but are much more concerned about the right not to be owned -- something that your founding fathers didn't identify.

Your precious founding fathers didn't enshrine a right to privacy. Doesn't mean it's not an inalienable right. Perhaps people in Europe have different opinions.

Your constitution isn't perfect.