Steve Thomas commentary: EU’s expanding `Right to be Forgotten’ laws could have global internet impact

In his latest Texas Lawyer commentary, firm shareholder Steve Thomas provides an overview of the evolving debate over cyber privacy and the tangle of issues surfacing with efforts to expand the European Union’s “right to be forgotten” laws.

Clearly a topic in which best intentions come with unintended consequences, Thomas illustrates the struggles of actress Cindy Lee Garcia, who found herself the subject of a fatwa and a wave of death threats after a long-forgotten bit part surfaced on the Internet, complete with overdubbed dialogue disrespectful of the Prophet Mohammed. Ms. Garcia has embarked on a quest to remove the content from the Internet, but last May, the Ninth Circuit concluded that such a “right to be forgotten” is not recognized in the U.S. Thomas notes that in EU countries, search engines can be obligated by law to remove questionable content, often for cases far less clear-cut than that of Ms. Garcia.

Writes Thomas: These case-by-case judgment calls must be made by search engines—companies in the business of making information more accessible. If the data subject disagrees, the search engine likely gets a trip to the courthouse to defend its decision.

And like it or not, the right to be forgotten might be coming to America. The EU’s new “Global Data Protection Regulation” (GDPR) is expected to be enacted this year and to take effect two years from now. In a Jan. 21, 2016, speech marking Data Privacy Day, FTC Commissioner Julie Brill said that Europe wants to “set a global standard” for privacy, and the GDPR, as its name implies, is part of that effort. Brill said that, under the GDPR, “the right to be forgotten applies to all data controllers,” not just search engines, and its scope “does not appear to be limited to European territory.” Brill defended the GDPR as having some of its roots in U.S. privacy law, but questioned the “extent to which orders to comply with takedown requests are enforceable outside the EU.”

For global Internet-based companies like Google, Facebook, Yahoo and virtually every major news organization, does it matter? The question would not be whether European law can be enforced in Peoria, but whether the “controller” wishes to partition its global network to provide more information in one region than permitted in another—and risk the expensive legal battles that might ensue. The words “chilling effect” come to mind.

The Internet, like the atmosphere, is a global phenomenon. Unfortunately, only time will tell whether Europe is protecting privacy or depleting the information layer.

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