First Amendment advocate counsels caution, but doesn't rebuff, American right to be forgotten

Gene Policinski, Freedom Forum Senior Fellow for the First Amendment, published an op-ed last week for the "First Five" blog in which he counseled caution, but did not gainsay, newsroom "fresh start," or "right to be forgotten" (RTBF), programs.

Motivated in part by European notions of personal data protection, or informational privacy, especially RTBF, fresh start programs give persons covered in past news an opportunity to apply for the erasure of their coverage from online archives.  For NPR in February, David Folkenflik and Claire Miller reported on trending fresh start programs at major U.S. news outlets, such as The Boston Globe, "Revisiting the Past for a Better Future."  The NPR stories observed that these programs have come about in part because of European legal norms, even for newspapers beyond the reach of European legal jurisdiction.

In 2013, I wrote in a law review article that Americans' expectations of privacy, including RTBF, are in fact consonant with evolving European norms, but American law has been slow to keep pace.  The twin notions of finite punishment for past wrongs and of a second chance for persons who have paid their dues are quintessentially American, I wrote in a Washington Post op-ed in 2014.  Those values are reflected, for example, in Eighth Amendment jurisprudence and the Ban the Box campaign.

A prohibitive challenge to RTBF norms in the United States has been the First Amendment, which generally prohibits regulation of the republication of lawfully obtained and truthful information.  Sometimes for better and sometimes for worse, the free-speech absolutist bent of the First Amendment contrasts with a more flexible European approach to rights balancing.  Nothing about the First Amendment, however, precludes a private journalistic enterprise, such as the Globe, from erasing content voluntarily.

Like RTBF itself, fresh start programs have been criticized by free speech and mass communication scholars.  They remind us that journalism is the "first rough draft of history."  Tinkering with archives therefore vests private actors with a weighty, not to mention expensive, responsibility on behalf of the public.  Fresh start advocates point out that this work is not dissimilar to the exercise of news judgment in the first instance.  But the perspective problem is not eliminated by time.  There is no way to be sure that our present-day second-guessing of the historical record is more fair and objective than the original judgment, nor sufficiently preservationist for the future.

Old Slave Mart Museum, Charleston, S.C.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Just last week, I visited the Old Slave Mart Museum and other historical sites in Charleston, S.C.  To my eyes, the casual treatment of persons as property in the content of news media in times of slavery, as well as racism evident in later media during Jim Crow, is evidence of horrific injustice and a powerful reminder not to take for granted that one's present vision is free of bias.  What if that record had been erased, rather than preserved?  Could Henry Louis Gates Jr.'s "Finding Your Roots" have identified Ben Affleck's slave-owning ancestor (NPR) if history were redacted?

At the same time, I am an advocate for RTBF in some form, just as I support Ban the Box.  I am devoted to the First Amendment.  But digital media, that is, an internet that "never forgets," confronts our society with a new and qualitatively different challenge from any we have faced before.  Viktor Mayer-Schönberger well described in his 2011 book, Delete: The Virtue of Forgetting in the Digital Age, how forgetting, in addition to remembering, is an essential and well evolved part of human social culture.  A failure to forget is an existential threat.

Journalist and academic Deborah L. Dwyer has developed a useful and thought-provoking set of fresh start resources for journalists at her website, Unpublishing the News, cited by Policisnki.  I don't pretend to know whether fresh start, or European RTBF, or some other approach is the best solution, nor whether any of these models will stand the test of time.  I do believe that feeling our way forward is fascinating and necessary.

The op-ed is Gene Policinski, Perspective: News Outlets Need Caution in Offering a "Fresh Start," Freedom Forum (May 26, 2021).

Popular singer's 'right to be forgotten' outweighs free speech in Italian case over archival video and biting commentary

Because Manchester City FC might need it after today's derby match, let's consider the right to be forgotten.

As an aspect of European, and increasingly global, data protection law, "the right to be forgotten," or right to erasure, unsettles the tummies of American media advocates.  The right to erasure runs up against the presumptive rule of U.S. First Amendment law that there can be no punishment for the republication of truthful information lawfully obtained.  Read more about that here (predating implementation of the EU General Data Protection Regulation).  The Italian Court of Cassation has issued a potentially important decision at the intersection of the right to erasure and the freedom of expression.  

Hat tip @TheItalianLawJournal.  For a few months to come, or until a better translation comes to light, I'm parking a very rough Google Translate rendition of the ruling here in PDF.  The translations that follow here are mine, refining the Google Translate rendering. The original court decision can be found here.

Antonello Venditti by Angela_Anji (CC BY-NC-SA 2.0)

The case stemmed from a TMZ-style confrontation by an RAI-1 "Live Life" («La vita in diretta») crew of Italian singer Antonello Venditti (Facebook) in 2000.  I've not seen the video, but Venditti apparently resisted the interrogators with sufficient gruffness that he earned his way onto the program's 2005 "ranking of the most obnoxious and grumpy characters in the entertainment world."  The story occasioned rebroadcast of the 2000 segment, along with commentary mocking his diminished fame in the intervening years.  Antonello took offense and sued, claiming "a right to be forgotten" attached to the 2000 video. 

Of peculiar resonance with current events in the United States, the Italian court took note of a German right-to-erasure case about "an affair in which a German citizen, who held a major political and business position in Germany, had requested the erasure of information from the web relating to an episode of collusion with Russian crime dating back several years earlier, republished several years after."  The Court of Justice of the EU ruled that "the public's interest in information prevailed over the individual's interest in oblivion."  However, the Italian court observed, the ruling resulted from a fact-intensive inquiry.

The court must engage with "the search for the right balance between the interest of Internet users in information and the fundamental rights of the person," the Italian court explained.  "Therefore, the editor of a newspaper that stores in its historical archive on the internet the news, making it available to a potentially unlimited number of people, is required to prevent, through the dissemination of even remote facts, without any meaningful and current public interest, possible harm to the right to be forgotten by the people who were involved."

The freedom of expression must yield to the right to erasure, the court held, upon analysis according to five factors:

1. the contribution made by the dissemination of the image or of the news to a matter of public interest;
2. the actual and current interest in the dissemination of the image or news (for reasons of justice, police, or protection of the rights and liberties of others, or for scientific, educational, or cultural purposes), to be considered absent in case of prevalence of a popular interest [italics added; in original, divulgativo: I'm not sure how to translate that and don't think "popular" or "informed" is right], or, worse, merely economic or commercial interest of the subject that spreads the news or the image; 
3. the high degree of notoriety of the subject represented, for the economic or political reality of the country;
4. the methods used, for the particular position held in public life, and, in particular, to obtain and give information, which must be truthful (because it is drawn from reliable sources, and with a diligent research work), disseminated in ways that are not excessive for information purposes, in the interest of the public, and free from insinuations or personal considerations, so as to highlight an exclusive objective interest in the new dissemination;
5. the preventive information about the publication or transmission of the news or image at a distance of time, in order to allow the interested party the right of reply before its disclosure to the general public.

Applying its multi-factor test, the court decided that RAI's interest in the rebroadcast video segment was outweighed by Antonello's privacy and data protection rights.  The court below had erred by finding Antonello's fame dispositive.  Reminding one of the analysis of Elmer Gertz in U.S. defamation lore, the court held that Antonello's large public following "certainly" did "not invest[ him] with a primary role in national public life."  Moreover, RAI's purpose, five years on, lacked merit. The court found it "undeniable that the reiterated broadcast ... had [the] unique purpose of allowing the inclusion of the singer ... in a ranking of ... 'the most obnoxious and grumpy of the entertainment world,' invented by the same broadcaster, allowing, in this way, the satisfaction of an interest that is exclusively informative [again, divulgativo], for commercial purposes, and for the television operator's audience."  The broadcaster's derogatory comments about Antonello's fame in 2005 aggravated the offense, the court added.  

The court also rejected "satire" as a defense.  The representation of Antonello was not "paradoxical, surreal and hyperbolic critique," but referred to "true fact," "clearly directed to a mere and unjustified denigration of the artist."  The broadcaster sought to use the 2000 video to represent Antonello in 2005 as "a singer, for years, in decline."

This case is the very stuff of American media advocates' nightmares.  Newspapers decry the right to erasure as a threat to online archives—though representations in archives, as archives, are readily factually distinguishable from the Antonello case.  The more realistic threat would be to the "TMZ"/"Talk Soup" format of entertainment media, or even the clever uses of archival video that have become the staple of commentary on The Daily Show with Trevor Noah and Last Week with John Oliver.  Certainly under a rule such as the Italian court employed, broadcasters, even straight news broadcasters, would have to take more care with their use of B roll.  

I've advocated in favor of evolving U.S. privacy law toward European data protection norms.  But the Italian court went too far here, lending credence to American nay-saying.  I fault the court's analysis of Antonello as, in U.S. terms, a "private figure."  The lower court got it right in finding Antonello's public status dispositive relative to this RAI commentary.  It's especially telling and troubling that as to the satire argument—the RAI program seems on the mild side of the Talk Soup genre—the court faulted RAI commenters for the truth in their observation of Antonello's waning fame.  The court set up the Italian judiciary to be a "super editor" of popular media, an arbiter of taste.  American courts appropriately struggle with newsworthiness determinations in privacy law because they do not want that job.

Book Review: So You've Been Publicly Shamed, by Jon Ronson

In an afterword to his 2015 book, Jon Ronson reported that So You’ve Been Publicly Shamed was not the first-draft title.  

Indeed, it must have been a struggle to name this wide-ranging volume.  Ronson explores shame in many contexts, from the woman whose off-color joke about AIDS on Twitter “blew up [her] life” (as the N.Y. Times put it) to the clients of a busted prostitution outfit, to the featured participant in “a German-themed BDSM orgy” (as the New Statesman put it).  I’m not here naming the Twitter woman, because if you read the book, I think you’ll agree she’s been named—and shamed—more than enough.

By Ronson’s broad definition of public shaming, I’ve been there.  Ronson does little to distinguish those who fairly earned some degree of public shaming—such as a journalist who made up quotes—from those who were disproportionately rebuked, or just misunderstood, or falsely maligned.  Ronson’s light touch with judgment—he admits he has not always been so evenhanded in his own social media life—frustrated me at first, as I’m one who likes to see justice done, or at least to wring my hands when it’s not.  However, I came to appreciate Ronson’s approach.  His reluctance to reach normative conclusions forced me, as reader, to acknowledge my own.  Do I really know how This American Life fact-checks, say, David Rakoff, versus Mike Daisey (see “Retraction”)?  Do I need to have an opinion at all on what consenting adults do in their sex dungeon?  (See also extended adventures with Jon Ronson in the porn world at his 2017 podcast, The Butterfly Effect, coming to iTunes free in November.)

Judgment would get in the way of Ronson’s search.  Chapter to chapter, Ronson leads us in a dogged effort to understand the shaming mob.  (Cf. the excellent work of Prof. Ken Westhues on mobbing.)  When does the mob spring into action, and when does it not?  Ronson tells stories of public shamings from the perspectives of the victims.  He went to the trouble of tracking them all down to get their stories; the Internet doesn’t usually bother.  (In my experience, neither does The New York Times, nor even a respectable author.)  Can the victim do anything to fight back against a public shaming?  Ronson gives us a fascinating glimpse into the sometimes shady world of online reputation management.  And ultimately:  Is there such a thing as redemption in the Internet age?

That was the question that kept me turning pages.  Coverage of Ronson’s book since 2015 really obsessed on the implications of social media, but this book is about so much more than that.  Despite my ongoing research into online erasure, or “the right to be forgotten” (e.g., here and here, and an exciting panel discussion at NCA 2016, reported here and here), I was surprised to see Ronson make the connection.  He considers the RTBF later in the book, tackling the conflicted feelings about RTBF that a lot of people in the journalism world have over interacting rights to expression, privacy, and identity. 

I continue to be captivated by the redemption problem, which I wrote about in a Washington Post opinion column some years ago.  I won’t tell where Ronson’s search leads, because that would spoil the fun.  Suffice to say, there’s plenty of work yet to do, if justice is really our aim.

Digital forgetting in America

Yesterday I spoke on a panel at the annual conference of the National Communication Association (NCA) on “the right to be forgotten,” or “right to erasure,” in data protection law. 

RTBF is a way for someone to get unwanted Internet content taken down, or at least de-listed, or de-indexed, from search results, because the content causes the person injury.  RTBF is regarded in Europe as a function of the human right to data protection, an outgrowth of the fundamental right to privacy in European law.  The history of the right is now well documented online for the reader of every interest level, so I won’t belabor it here.  Suffice to say that a landmark moment came in the case of Mario Costeja González in the European Court of Justice in 2014 (Wikipedia; the case in English).  He had complained about the online publication of an archived 1998 newspaper report of a debt.  The court sided with the Spanish Data Protection Authority in ordering Google Spain to de-index the report from search results.

The Costeja case rattled media on the American side of the Atlantic, who raised the alarm about a threat to the freedom of expression.  U.S. law has always been a problematic analog to European privacy law.  The disparity stems from a basic, initial problem, which is that the only place our Constitution plainly recognizes privacy law is in the Fourth Amendment right against unreasonable searches and seizures.  To the dismay of constitutional textualists, the U.S. Supreme Court has sometimes located a right of privacy in various other provisions, as well as in their “penumbras and emanations” (Griswold v. Conn., 381 U.S. 479, 484 (1965) (LII)).  But at the end of the day, our constitutional notion of a privacy right has remained largely constrained by the state action doctrine, meaning the right restrains only governmental power, not the private operators of search engines and newspaper archives. When statutory or common law privacy collides with the free speech rights of online publishers, the constitutional imperative prevails.

Meanwhile RTBF has been recognized explicitly in the General Data Protection Regulation (GDPR) of the European Union.  The doctrine has spawned its own body of administrative and case law in European national courts, some of it tied more to the human right of privacy than to the GDPR.  RTBF court rulings have spawned a labor-intensive takedown request service within Google.  The courts and the Internet giant are sparring now over whether search engines can be compelled to de-index websites worldwide or only in national iterations of the service (e.g., google.fr for France).  Scholars are looking hard at whether there should be a legal difference between a search engine and a primary information provider, such as a newspaper, in the area of Internet intermediary liability.   RTBF was a sore point in the trans-Atlantic negotiation over the data protection Privacy Shield agreement, and still key details remain to be worked out in implementation.  And RTBF and its balance with free expression remains a point of debate around the world as countries such as Brazil look to overhaul and update their data protection and privacy laws.

I made the moral case for RTBF in a Washington Post op-ed two years ago, so I won’t reiterate that here.  I’ve since been looking into the law of RTBF in the United States.  Saturday I reported my belief that the First Amendment hurdles are surmountable.  

To give just the flavor of that presentation, take for example the prior restraint doctrine in U.S. First Amendment law.  The prior restraint doctrine essentially forbids restraints on free expression backed by government power prior to adjudication of the expression as unlawful.  One need look no farther than the vigorous notice and takedown (N&TD) regime of the Digital Millennium Copyright Act (DMCA) to see that the prior restraint doctrine is a manageable problem.  To be clear, I’m on record agreeing with those who think that DMCA N&TD has gotten out of control and needs to be reined in, not to mention that the underlying scope of copyright protection is excessive.  But the analogy holds.  When nude celebrity photos of the likes of Jennifer Lawrence were leaked online, the remedy employed by some—for the rabidly popular Lawrence, it wasn’t possible—to recall their images from circulation was copyright N&TD, rather than tortious invasion of privacy.  It makes no sense to compel the use of intellectual property law to remedy what is plainly a privacy problem.  Tort law is up to the job.  Moreover, I see a clear and constitutional path to injunctive remedies for privacy torts, better than for ill-fitting copyright infringements.

I am also engaging the idea that in this age of information commodification, the provision of information is sometimes more a commercial enterprise than an expressive enterprise.  Certainly that's the case for data brokers, such as Acxiom.  Researchers such as Nikolas Ott and Hugo Zylberberg in the Kennedy School Review have described the commercial value of the wash of data that our appliances will generate in the Internet of Things era.  A Spanish court in an RTBF case against the newspaper El País held that the newspaper's online publication of archives was a commercial act rather than a journalistic one.  Commercial communication is protected by the First Amendment, but to a much lesser extent than is political or artistic expression.

I am grateful to Dr. Kyu Ho Youm, the John Marshall First Amendment chair at the University of Oregon School of Journalism and Communication, who invited me to be a part of the NCA program that he designed and proposed.  I am also indebted for thought-provoking reflection to my co-panelists: Dr. Ed Carter, professor and director of the School of Communication at Brigham Young University; Dr. Stefan Kulk, a researcher at the Centre for Intellectual Property Law of Utrecht University in the Netherlands; and Dr. Ahran Park, a senior researcher for the Korea Press Foundation in South Korea.