The Emerging Conflict between Newsworthiness and the Right to Be Forgotten

Abstract

In early 2010 it was reported that the some of the nations of the European Union were considering passing legislation aimed a protecting an individual's "right to be forgotten." The right to be forgotten is such that a person's past deeds, though chronicled and now available on the Internet, were considered private. Therefore, any person could demand that the possessor of this information erase it or face a lawsuit.

Although EU members hail the creation of this right to be forgotten as improving individual privacy rights, such a right creates a problem for American online news organizations. Not only does such law come into direct conflict with protections found in the First Amendment, but it also conflicts with traditional privacy jurisprudence, which states that information made public cannot become private again. At the same time, Americans seem to be attempting to assert a right to be forgotten. For instance, a man threatened to sue a college newspaper that had articles reporting on the misdeeds of his son in its online archives.

This paper analyzes the emerging conflict that recognizing a right to be forgotten online would have with American jurisprudence regarding the role of the press, both traditional and online, as a watchdog for the public as well as with traditional U.S. privacy policy. Section two attempts to examine the boundaries of the right to be forgotten from both theoretical and EU perspectives. Section three considers traditional U.S privacy law and some of the contours of that law including the protection for newsworthy information. Section four analyzes the right to be forgotten with respect to the protections for free expression detailed in Section three. This paper concludes with a consideration of how the right to be forgotten would not fit with traditional U.S. privacy jurisprudence.

Keywords: right to be forgotten, privacy, newsworthiness, European Union