What Europe’s ‘Right to Be Forgotten’ Has in Common with SOPA

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Members of the European Parliament vote during a voting session at the European Parliament in Strasbourg, December 13, 2011.

In George Orwell’s 1984, the Ministry of Truth employs a “memory hole” to eliminate inconvenient facts. If a previously published photo or record later proves to be embarrassing for the government, it is thrown down the hole. The facts are erased from the face of the earth and the world is led to believe that something that happened never actually happened. The European Commission last week sought to give citizens their own personal memory holes.

Speaking at the Digital Life Design conference in Munich, European Justice Commissioner Viviane Reding announced a reboot of the E.U.’s Data Protection Directive that includes a new “right to be forgotten”. This new right, which is now being considered by the European Parliament, would allow persons to ask for facts about themselves to be deleted from the web, and would force publishers to comply unless they can show that there is a “legitimate” reason not to.

(MORE: The Right to Be Forgotten: Europe Proposes New Online-Privacy Laws)

The proposed legislation is meant to help young people manage their reputation: Something you put online today might affect your employment prospects or credit-worthiness tomorrow, and the rules would help you escape those consequences. “These rules are particularly aimed at young people as they are not always as aware as they could be about the consequence of putting photos and other information on social network websites, or about the various privacy settings available,” said a spokesman for Reding.

Two observations can be made about this proposed law. First, that it subordinates free expression to privacy, and second, that it is as much about censorship as SOPA was.

On the first count, the new law would flip the traditional understanding of privacy as an exception to free speech. What this means is that if we treat free expression as the more important value, then one has to prove a harmful violation of privacy before the speaker can be silenced. Under the proposed law, however, it’s the speaker who must show that his speech is a “legitimate” exception to a claim of privacy. That is, the burden of proof is switched so that speakers are the ones who would have to justify their speech.

And what counts as allowable “legitimate” speech? “The archives of a newspaper are a good example. It is clear that the right to be forgotten cannot amount to a right of the total erasure of history,” Reding said in her speech.

But sometimes it’s not so clear.

Take the case of Max Moseley, the former head of Formula 1 racing who is suing Google in France and Germany to force the company to delete search results for a video showing him in a “Nazi-themed” orgy. He was no naive teen when the video was made, yet he is seeking to remove the fact of its existence from the world in order to escape the consequences of his actions. Is the video protected news or a breach of privacy? More importantly, who decides? Will there be a Ministry of Truth to serve as arbiter?

(MORE: Battlefield SOPA)

These questions raise a second concern: Removing content from the web in the name of privacy is censorship as much as doing so in the name of stopping online piracy.

“At first blush, censorship in the form of IP enforcement and censorship through privacy law look very different,” says Jane Yakowitz, Visiting Assistant Professor of Law at Brooklyn Law School. “But any time the state creates and vigorously enforces exclusive rights to the control of information, especially accurate information, we should be sure that extraordinary power really is serving the public.”

Objections to SOPA centered on that law’s attempt to tinker with the Internet’s Domain Name System to block access to illicit information. But another powerful objection was the collateral damage such blocking would do to free speech. “A broad-sweeping right to be forgotten gives E.U. citizens the power to take facts out of the public domain, and forces companies to un-know things that the consumers had already told them,” says Yakowitz.

Additionally, Yakowitz says that giving consumers the right to escape the consequences of their actions could hurt others.

“When a particular consumer chooses to invoke the right to be forgotten in order to suppress reputation-damaging information or to improve their credit-worthiness, for instance, that decision has negative consequences to other people – other credit applicants,” she says. “After all, social and economic upward mobility require downward mobility. It is not at all clear to me that the state should force anybody to sacrifice accurate, legitimately collected information at the altar of an amorphous sense of personal dignity.”

This proposed new law in the E.U. should matter to those of us in the the U.S., too. For starters, the right to be forgotten would apply to U.S. websites accessed by Europeans – even when the sites are based in the U.S. Second, similar right to be forgotten legislation has been previously proposed in Congress and will likely be again.

Blocking, filtering, or deletion of information online – especially when it’s accurate – is censorship. And if one is consistent, censorship is a serious concern whether the pretense is copyright enforcement or privacy protection.

(MORE: Why We Won’t See Many Protests like the SOPA Blackout)

Disclosure: Time Inc. parent company Time Warner supports SOPA legislation.