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64 Stan. L. Rev. Online 88 (2011-2012)
The Right to Be Forgotten

handle is hein.journals/slro64 and id is 89 raw text is: 64 STAN. L. REV. ONLINE 88 February 13, 2012 SYMPOSIUM ISSUE THE RIGHT TO BE FORGOTTEN Jeffrey Rosen* At the end of January, the European Commissioner for Justice, Fundamen- tal Rights, and Citizenship, Viviane Reding, announced the European Commis- sion's proposal to create a sweeping new privacy right-the right to be forgot- ten. The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regu- lation. Although Reding depicted the new right as a modest expansion of exist- ing 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 Face- book and Google, for example, liable for up to two percent of their global in- come 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 concep- tions of the proper balance between privacy and free speech, leading to a far less open Internet. In theory, the right to be forgotten addresses an urgent problem in the digi- tal age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Ameri- cans have diametrically opposed approaches to the problem. In Europe, the in- tellectual roots of the right to be forgotten can be found in French law, which recognizes le droit i l'oubli-or the right of oblivion-a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone' s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor' s Wikipedia page.1 t The Privacy Paradox: Privacy and Its Conflicting Values. * Professor of Law, The George Washington University; Legal Affairs Editor, The New Republic. 1. John Schwartz, Two German Killers Demanding Anonymity Sue Wikipedia's Par- ent, N.Y. TIMEs, Nov. 12, 2009, at A13; see also Walter Sedlmayr, WIKIPEDIA (last visited Feb. 6, 2012), http://en.wikipedia.org/wiki/WalterSedmayr. 88

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