Sunday, September 14, 2014

More reflection on "the right to forgotten" -- could there exist a subtle connection to libel law

Here’s an older essay in the Stanford Law Review on “the right to be forgotten”, by Jeffrey Rosen, before this summer’s ruling by the EU court that has search engines scrambling. Link here. 

There’s another reason why this concept is troubling.  The essay refers to the theory that a person could order a website to take something down when the website had republished it.  It might not be so difficult for Facebook and Twitter, but it could matter to private blogs or sites.  I see that I talked about this on May 14 a bit.  Suppose some information about a particular person for something that happened decades ago is potentially derogatory, and a blogger reports the information by giving a hyperlink to another site that might be of at best moderate credibility (as opposed to a major news site).  The original site is slightly inaccurate.  The person sues both sites for libel.  There is some controversy over where hyperlinking is “republication” (because of the practical effect of magnifying something that would take considerable effort to root out without the Internet) or simply a bibliographic reference, as in a term paper.  The courts tend to be interpreting it as the latter, in the US, and now in Canada (Britain may be fuzzier).  The second person (the person giving the link) claims the right of “fair reporting” and says he used the link in good faith.  American courts sound likely to accept that idea, but I wonder if it could matter if the blogger is an “amateur”.  Electronic Frontier Foundation has been arguing that bloggers have the same legal rights as the press, although there are some questions as to, for example, protecting sources.  The tone of Supreme Court opinions in both the Communications Decency Act of 1996 (ironically, the source of Section 230, which stayed intact) and then COPA, the Child Online Protection Act (about which I have a separate blog), which came up twice before SCOTUS and finally was struck down on a trial on merits in 2007 in Philadelphia, bears out this general expectation. However, there are cultural arguments to the contrary, which I encounter when dealing with people myself.  If I weren’t blogging in a “concentric” fashion requiring “journalistic objectivity”, I could support individual causes or sell individual services, like a “real man” with a “family to support”.  That’s an argument, that the “new amateurism” on the Internet, which allows individuals to mimic whole companies, undermines labor markets and social capital (and the ability to accept relationships that give value to others).  But there is no law that says anything like this.   

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