The Case for Bringing the Right to be Forgotten to America
In Europe, privacy is considered a human right. Online harassment is considered a human rights abuse.
In the U.S., there are few laws protecting us against having our personal data published online, or even collected and sold by data publishers. On the internet, any of us can be impersonated, harassed or the focus of “fake news.” It persists because of the Communications Decency Act Section 230, (CDA 230), a law that protects the platforms that publish such information — publishers like Google, Facebook, Twitter and millions of blogs, forums and websites — against liability for third-party content on their websites.
There are movements here to change that law. Right2Remove is one. The organization advocates striking a balance between 1st Amendment free speech principles and other factors such as the right to privacy, consumer rights, anti-discrimination law, protection from online disinformation, and internet companies’ accountability.
Carrie Goldberg, Esq, is a high-profile attorney in the fight to get justice for victims of internet abuse. In the blog post WTF IS THE CDA230?, her firm made this observation: “A more reasonable interpretation of CDA 230 would allow victims to sue platforms when they’ve suffered injury from foreseeable harms the platform caused.”
CDA 230 “a tremendous blockade”
According to New York City attorney Christine Rafin, Esq., Section 230 — and other laws — give you the right to sue the person who actually made the comments about you. In many cases, you can get them to remove the content or get an award of damages against them. This may be “worthless,” however, because by the time you may be successful in obtaining a judgment, the damage is done. Also, unlike big companies, very few individuals will be able to pay a significant award of damages. You also would need an order directing removal of the content from each website on which it appears. Some sites may just ignore the order if it is not from their jurisdiction or if they did not have an opportunity to participate in the lawsuit. For these reasons, Section 230 is often a tremendous blockade to the aggrieved plaintiff.
The personal and professional damages caused by online harassment can be so disruptive that my online reputation management practice supports bringing a version of the Right to be Forgotten to America — even though the CDA 230 is effectively the source of much of our business. We also support the passage of laws that will better protect the online privacy of U.S. citizens and protect them from anonymous harassment and other forms of hate speech, while through our business we find practical ways to protect them now.
As Attorney Jed Weiner, a partner at Mei & Mark LLP in Washington, D.C. — which just launched a Data Privacy & Data Protection Practice — says, “Data is the new gold. Managing customer and employee personal information is critical to many businesses. Violating data privacy laws can result in significant legal exposure and reputational harm…and too often does.”
Many Americans support the CDA 230 because they fear an erosion of free speech. Tech companies support the Act because it would cost them serious money to better protect their users. It’s not that they don’t have the resources. Facebook reportedly has well over $50 billion in cash reserves while Alphabet, Google’s parent company, has over twice that amount. They and other tech companies spend fortunes lobbying in Washington to ensure the CDA 230 and other laws favoring them stay in place.
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Europe’s View vs. America: A Philosophy of Human Rights Online
With these concerns in mind, I spoke with Dan Shefet, a French attorney in Paris (and, like Christine Rafin, an Advisory Board member of my agency). When he filed a lawsuit in 2014 to force Google to remove links to false, defamatory information about him, the case made worldwide headlines. It was the first such suit against Google to be successful. Since then he has become a prominent advocate for privacy and protection against harmful speech for citizens worldwide.
In Germany, he has advised Angela Merkel’s administration on a hate speech law that she pushed through, which makes tech companies subject to fines of about $60 million if they break it. He is often in the U.S. meeting with elected officials who are interested in bringing such protection here, and has advised organizations around the world. My questions are in italics.
How has France’s laws, and its history of law-making, led it to place such value on protecting its citizens’ privacy and shielding them from hate speech?
The first declaration of human rights was made in France in 1789, at the start of the French Revolution. They proposed the idea of human rights, the notion that you have rights just because you are a human, any human.
Today, the difference between human rights in France and the U.S. is best exemplified by the terminology both countries use. In the U.S. you talk about “civil rights” and “civil liberties.” We use the phrase “human rights.” This is not just a difference of words, but a difference of concept. It goes very deep.
Our human rights are universal. They apply to the newborn in the Congo as well as the newborn in Berlin. Your vision of civil rights is not. They apply only to citizens of the U.S. and perhaps residents and visitors.
In 1948, when the Universal Declaration of Human Rights was adopted by the U.N., it was a non-binding instrument. The U.S. made several important additions to it. One was the First Amendment. Articles 19 & 20 of the international covenant made limitations on free speech, within the limits of protecting reputation, and they also used the term “advocacy for hatred is illegal.” The U.S. opposed those two provisions and they were, therefore, excluded.
In France, we are more philosophical regarding the nature of human rights. The U.S. tends to be more political. Here, when we see what is happening on the internet, we see that human rights are not being protected and we work to ensure that is fixed. We do not understand why the Communications Decency Act Section 230 exists and how tech companies can get away with destroying people’s lives when they publish hate speech.
You often speak at such platforms as the American Bar Association, the Council of Europe and UNESCO, and meet with elected officials here in the U.S. How do you explain the broad interest in your work?
There is a growing interest — a real one — in understanding how we have done things in Europe regarding privacy laws and the “Right to be Forgotten.”
I think the American public is aware of the abuse made possible by the immunity the CDA provides. It sometimes destroys lives by allowing anonymous, false hate speech, impersonation, and character assassination, which can and has resulted in suicide, bankruptcy, and other tragic outcomes. Lawmakers themselves are also victims. There is a legal gap in the U.S. between knowing about harm, playing a role in making it possible and being accountable. Tech platforms like Facebook want to preserve that gap.
They claim we want to monitor and censor them. No, we are not saying that. We are saying that once harmful content is flagged, then the other side has, by definition, knowledge of it. Then you can start judging it from an ethical and a legal point of view.
Then they shift the argument to the first amendment and free speech rights?
Yes. When you bring this up in the U.S. there are always two arguments you encounter. One is: “So this means I can’t say what I want about a public figure.” The debate then gets into free speech about public figures. But the human rights I described are horizontal, not vertical. They describe other people at the same level. They don’t protect those who wield power over you.
A second argument you run into, especially if you defend the Right to Be Forgotten, is: “If I am the dean of a school and I want to hire a school bus driver, shouldn’t I be able to know if he is a pedophile?” Of course, you have the right. There is a wealth of important information that remains publicly available through the appropriate channels (e.g., registered sex offender registries; court records, etc.). But people get tricked by this reasoning.
How could the Right to Be Forgotten be brought to America and adapted to our culture, which prizes freedom of speech?
In the U.S. internet platforms often have a flagging button with different categories — including hate speech. There are many windows you have to open and interact with. It is time-consuming and tedious, and discourages completion.
The way these flagging buttons work under the European directive, especially in France, is that you can flag content in more than one way.
Under the French Hate Speech Law, once that information is deemed to have arrived at Facebook, Google, Twitter or wherever, that is the starting point. In a legal sense, the platform is aware of the transgression.
Note: That law forbids any communication which is intended to incite discrimination against, hatred of, or harm to, anyone because of his belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, a sexual orientation, or a gender identity, or because he or she has a handicap.
It contains a requirement that flagging buttons should be visible and easy to navigate. It takes seconds and also ensures you have the option to write a letter, should you prefer, if something is hurtful, such as hate speech, or is illegal.
The flagging buttons in the U.S. only allow you to call out something that is in violation of the platform’s community guidelines. When we flag, it is for something illegal. That is a big difference.
I gave a speech in Brussels that described a third argument Silicon Valley employs: the slippery slope defense. They usually claim they can’t police content because they have 2 billion users. But that argument is spurious and misleading. What they are saying is that success justifies harm; we are so successful that we can’t control our content.
With success comes responsibility, not the right to do harm.
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Related reading: An Attorney’s Advice for Removing Negative, Defamatory and Infringing Material from the Internet
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Shannon Wilkinson is a nationally recognized expert in online reputation management. Her New York City-based firm Reputation Communications advises CEOs, business leaders, VIPs and their organizations on all aspects of online reputation management. As a commentator for The Wall Street Journal, her views about how leading corporations are managing their crises have focused on Equifax, Ohio State University, Purdue Pharma, Sanofi, UBER and Whisper, among many others.
She is the chief blogger for You(Online): The Magazine, which educates readers about all aspects of digital reputation management. Follow her on Twitter @reputationnews and @shannonnewyork.
