Private citizens have the right to remove important falsehoods from the public record. Defamation law clearly allows retractions and damages if provable lies are published.
Under the New York Times vs. Sullivan test, public figures carry less weight here, as the press is granted the First Amendment right to report in the public interest, even if that report is subsequently not entirely accurate. So is the price of fame. Of course, even in this test, a newspaper editor who publishes damaging statements knowingly or recklessly disregarding his falsity is still liable to defamation.
Thus, the law offers retraction and compensation to those who are harmed by published lies. Is this enough to protect people from today’s voracious information machine where anyone can become a global publisher and anyone can find their actions or attributes discussed on a forum read by thousands? or even millions? If we protect people from published lies, should we also protect people from published truth?
Of course, our law protects some people from the published truth in certain circumstances. What is the notion of privacy, after all, if not the right to hide certain truths? Almost all US states and territories passed unintentional pornography laws – a term describing a post where someone posts nude or compromising photos of someone with whom they have been intimate. The subject being photographed can use these laws to remove the photos from posting on the Internet and collect some measure of sanction against the person posting the photos. The accuracy of these images does not affect the rights of the victim. Information may be deleted regardless of the truth or falsity contained in the information. The rights of victims to privacy in such cases trump all.
In other areas, however, personal rights to overall privacy are severely limited. While Louis Brandeis in the 1890s Harvard Law Journal, before his rise to the Supreme Court of the United States, envisioned a right to privacy where the Boston press could be punished for reporting gossip gleaned at parties of the rich, a “right not to occupy” against the press has never emerged in this area. country. Brandeis and his legal partner were concerned about intrusive new technologies like wearable cameras, but they would be shocked 130 years later, given the ubiquitous camera phones, audio recorders, and IoT technology that are eliminating all of our private obscurity, that US law has not placed more restrictions on public disclosure of privacy.
Instead, our current privacy protections are situational and target more the types of entities that collect data than basic privacy protections. In other words, we have privacy restrictions under the Bill of Rights that affect government oversight and control over our bodies, and we have a few state laws that grant limited rights to life. private versus private entities and their marketing around personal data or their limited biometric data capture. We have protections involving the posting of certain types of data like financial account information and healthcare processing data under limited circumstances. Information about children (and, in California, teenage use of social media) has limited protection.
Otherwise, posting our personal information is fair game in this country. If the New York Post wants to report that ordinary citizen George Costanza sits in his underwear most nights watching TV and eating a big chunk of cheese, then the Post can do so without fear of legal reprimand. If a reporter sees you drinking 6 vodka tonics in one evening, she can say so in writing.
Which brings us to the question of the right to hide the published truth – which is above all a recognized concept in continental Europe. Europeans call it the right to be forgotten, which is manifestly false because it only applies in very limited circumstances to restricted categories of data, or a right to erasure, which covers at least part of the concept . I recently wrote a column on this topic calling the EU rule that requires Google to remove links to stories on embarrassing topics the right to hide the truth. But, as stated above, all privacy rules are the right to hide the truth in one way or another, so EU rules requiring search engines to remove links to embarrassing news stories are more precisely described as the right to partially hide the published truth.
The problem I have with this EU-created right is that the published truth is generally not private information. The first case of recognition of the right resulted from a man’s embarrassment about reporting an official property seizure in his local newspaper. This event can be humbling and probably unrelated to understanding this man’s character, but it is a public event nonetheless. The bank had to follow official rules to effect the foreclosure, and all of these real estate actions are in the public domain. It was not a report on how the man spent his evenings at home or with whom he chose to associate. It was a public act resulting from a public petition asking the bank to enforce its own rights as a mortgage lender.
The EU’s own ambivalence about this right to hide the published truth can be seen in the way it applies it. Google must remove its link to the case, but the newspaper’s original report is allowed to remain on the Internet. It’s like saying I don’t want you to visit a certain restaurant, so I won’t tell you its address, but if you find the address some other way, you can go. If you really wanted the event to be “forgotten” it would be deleted from the web entirely. Instead, the EU is once again finding a way to create hurdles for US tech companies without even trying to accomplish the restriction they claim to promote.
Similar rules in the US are unlikely to survive First Amendment court challenges, so I don’t expect to see them here. California has implemented a partial personal right in certain circumstances to require private, for-profit companies to delete some of the information they hold about you. This is far from forcing Google or Bing to remove links to news articles reporting public and official actions taken against you. Extending privacy protections to public record hiding can help people in some circumstances, but at what cost?
The EU would prefer to hide the truth because it prioritizes privacy. The United States would prefer to limit confidentiality as it prioritizes the truth and fuller knowledge. Both are logical conclusions to the basic priorities of a company.
Copyright © 2021 Womble Bond Dickinson (US) LLP All rights reserved.Revue nationale de droit, volume XI, number 236