Melito & Adolfsen P.C.
U.S. and International Litigation Firm New York City And The World
212-238-8900

How one family's horrific loss of their daughter is shedding light on the complexities of establishing "the right to be forgotten" on the internet

An 18-year-old woman was decapitated when she drove her father's sports car into the side of a concrete toll booth in California. The California Highway Patrol (CHP) secured the scene and took photographs. It was so horrific that the local coroner did not allow the parents to identify the body.

Two weeks later, the photos from the crash appeared on the internet apparently released by two employees in the CHP. They had emailed nine gruesome death images to friends and family on Halloween for pure shock value. The photos spread across the internet like a wildfire. The father, having just lost his eldest daughter, told his three other girls they could not look at the internet.

Escaping unwanted attention on the internet is an almost impossible problem-in the U.S. at least. Copyright law, making it unlawful to post photos or other copyrighted material without the permission of the copyright holder, is one possible weapon but you, like the grieving father, may not be the copyright holder. Following a lengthy negotiation with the CHP to obtain the copyright to the photos, the CHP refused to surrender the copyright to the father.

We are very familiar with freedom of expression and privacy rights in this country. Now, both of those rights are implicated in what others are claiming is a "right to be forgotten."

Europe has different rules. There, the European Court of Justice (something like a Supreme Court for the 28 members of the European Union) issued a ruling affecting search engines directing that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." Given the enormous protections afforded free speech in this country, such a ruling would not fly here.

There was a time when criminal records, for example, faded away over time. The problem is nothing fades away anymore.

To comply with the European Court of Justice's directive, Google reportedly has assembled dozens of lawyers, paralegals and others to review petitions from those seeking to remove links to content on the internet. Publishers get to make a case for keeping the links as a search result.

The process only applies to the Google search page in the countries affected by the decision-not Google.com, the search page in the U.S. What that means is that if you quickly search in Germany, for example, on Google.de, you won't find the deleted links, but if in Germany you make the small extra effort to go to Google.com, you will. The underlying data are not deleted but the Court has created what has been referred to as a "speed bump" making it so that you don't find the data accidentally.

That's all one grieving father wanted. For a fascinating discussion of this issue in all of its complexity, see "The Solace of Oblivion," by Jeffrey Toobin in The New Yorker, Sept. 29, 2014.

No Comments

Leave a comment
Comment Information