Speaking of forgetting: Analysis of possible non-EU responses to the right to be forgotten and speech exception

The right to be forgotten is contentious partly because it highlights the difference between U.S. and E.U. prioritization of information privacy and freedom of expression. Recently, a moderate amount of research has been undertaken to explore the conceptual issues underlying the right to be forgotten and how the right conflicts with the U.S. first amendment, but little has been written about its impending implementation and interoperability issues. While this is an E.U. Data Protection Regulation proposing to grant rights only to E.U. citizens, the world has a stake in this right for a number of reasons. This article will analyze the options for non-E.U. countries and data controllers, namely the U.S., to react to the establishment of such a right, now called “The Right to Erasure”. These options are the following: (1) adopt the same right to erasure for themselves, (2) ignore right to erasure claims, (3) comply with erasure take down requests, or (4) seek to establish a modified version of the right to erasure. In assessing these options, the article will first address the reality of a right to erasure under U.S. law. Second, it will discuss compliance and jurisdictional issues if the right is ignored. Third, the article will look at the impact of full acceptance of the take-down regime, focusing on the potential chilling effects and abuse. Finally, it will propose that non-E.U. countries encourage a right to erasure that is less disruptive: a right to erasure that allows data subjects to directly request removal of data held privately by data controllers and a right to oblivion for publicly available information that is enforced similarly to defamation claims, requiring a court order.