The Right to be Forgotten: Applicability of the Da Cunha Case
Recently, we have been examining the EU’s Proposed Regulations relating to the Right to be Forgotten. But Europe is not the only place where this concept is gaining momentum. In fact, Argentina already has its own version of the Right to be Forgotten in place with at least one widely cited case.
An Argentine pop star named Virginia Da Cunha used the law to file suit against Google and Yahoo demanding that they unpublish and otherwise remove all sexually suggestive photos for which she posed when she was younger and presumably prior to enjoying fame as a singer. A court initially granted her request and ordered the search engines to remove all websites containing the photos at issue. The order was eventually overturned on appeal. The appeals court ruled that Google and Yahoo could only be held liable if they knew the disputed content was defamatory and negligently failed to unpublish it.
It turns out that the Da Cunha case was only a narrow victory since it has not stopped similar cases from being brought against the search engines. There are over 130 similar cases pending in Argentina demanding the removal of user-generated content mostly by the famous, semi-famous, and want-to-be famous. Argentina’s version of the Right to be Forgotten law is clearly a burden on affected companies, yet it would seem to be far less so than the EU’s proposed version which treats all personal data the same, making no distinction between defamatory and true content. Under the EU version, Da Cunha would presumably have prevailed on appeal.
Should the EU’s Right to be Forgotten proposal become law, the resultant number of unpublish demands and possible lawsuits would very likely dwarf the numbers in Argentina. This is especially so since the number of instances where a person posts some item of personal information that the poster later regrets but others have since reposted on their own websites and refuse to unpublish is massive. The potential numbers are mind-boggling as are the compliance requirements for affected companies that will then have to divert precious resources to addressing an avalanche of unpublish requests and fighting resultant lawsuits.
The Right to be Forgotten addresses an issue of critical importance to everyone in the internet age, viz., privacy. Those of us in the U.S. are largely unaware of the concept itself and the various debates raging over it across the globe since it would never become law here. However, it is a grave mistake for any U.S. company on the internet that handles or otherwise utilizes peoples’ personal information in the course of business to ignore the Right to be Forgotten simply because the U.S. does not recognize it. Many other countries do so already or are receptive to it. While the internet allows companies to enjoy global reach and presence, it can correspondingly impose global obligations. Knowledge of and, in applicable circumstances, compliance with the Right to be Forgotten as mandated in various parts of the world is one such global obligation that U.S. companies ignore at their peril.