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The Right to be Forgotten in an Era of Instant Notoriety

2.23.2019

*Trigger Warning*: This article includes mentions of suicide.

It could be the start of a Law & Order episode. In August, a pedestrian in Manhattan’s East Village noted a driver sitting inside a parked car. The driver was still there two days later. Someone called 911.

The dead driver turned out to be Geoffrey Corbis. Born Geoffrey Weglarz, he had changed his name out of desperation. On March 26, 2013, Mr. Weglarz bought a sandwich at McDonalds. He would return shortly to complain he had the wrong sandwich. He ended his tirade by hurling the sandwich at a pregnant McDonalds employee. The incident was captured on video. The video went viral.

The ensuing flood of news coverage ensured that Weglarz was forever connected with the tirade. Having drained his 401(k), savings, and unemployment benefits, he was in a financially precarious position. The inevitable appearance of the McDonalds tantrum in any online search of his name destroyed any remaining job prospects. In desperation, he tried changing his last name to Corbis. It was not enough. Five years later, the saga ended with his death by poison on a Manhattan street.

Mr. Weglarz’s life is not the only one destroyed by Internet notoriety. Italy debated the issue after a young woman hanged herself near Naples. She had been identified with an Internet sex video that had gone viral. Like Weglarz, she struggled with the humiliation. Moving did not help. Neither did time. She prevailed in a legal battle, but had to pay $25,000 in court costs. The ordeal proved overwhelming. She ultimately picked the same path as Weglarz.

The two tragic deaths highlight a social media issue the law is just starting to grapple with: in an age when any unguarded private action can lead to global notoriety, what, if anything, should the law do? In the United States, the answer would appear to be superficially easy: nothing. The First Amendment prevents the courts and government from interfering with free speech.

The European Union has taken a different approach. In May 2014, the European Union Court of Justice decided Google Spain v AEPD and Mario Costeja Gonzalez. Costeja meant that an ill-advised public rant would not necessarily haunt a person for life. Costeja established the framework by permitting individuals to ask search engines to remove results featuring their names.

Contrary to popular belief, such requests are not automatically honored. Instead, the courts use a balancing test. They evaluate whether the individual's interest in removing the material outweighs the public interest in access to the data. Costeja held that a person’s privacy rights must override “the interest of the general public in finding that information upon a search relating to the data subject’s name.”

The right to be forgotten flows from the principle that following a certain period, stigmatizing actions should be purged to enable the person to seek employment or other opportunities. At one level this seems alien to the United States. Yet an Adweek survey found that 90% of Americans would favor some form of such a right. And the Federal Trade Commission has dealt with formal complaints petitioning for a variant on the Right To Be Forgotten to be instituted in the United States.

While constitutional restrictions will bar a sweeping European style right here, some legal protections may be available. The First Amendment has never precluded all regulation. For instance, minors and national security secrets enjoy some protection. And existing legislation: the California Minor Eraser Law, the Children’s Online Privacy Protection Act, Gramm-Leach-Bliley Act, the Electronic Communications Privacy Act, HIPAA, FCRA, and the Computer Fraud and Abuse Act contain provisions that offer limited variants of the Right to Be Forgotten.

There appears to be a growing recognition that in an era of ever-present cellphone and surveillance cameras, many are one bad day away from perpetual infamy. Jon Ronson, the author of So You’ve Been Publicly Shamed, has interviewed people who have destroyed their lives by an ill-advised posting or quip that went viral: “The people I met were mostly unemployed, fired for their transgressions, and they seemed broken somehow — deeply confused and traumatized.”

Ronson shows that boundaries between the cyber and bricks-and-mortar world have become ever more blurred. Which person wants to be known worldwide and forever for their worst moment? Until the law identifies a means to factor in the interests of the “publicly shamed” into our First Amendment jurisprudence, Geoffrey Weglarz will almost certainly not be the last victim of his own worst outbursts.

Saad Gul and Mike Slipsky, editors of NC Privacy Law Blog, are partners with Poyner Spruill LLP. They advise clients on a wide range of privacy, data security, and cyber liability issues. Saad (@NC_Cyberlaw) may be reached at 919.783.1170 or sgul@poynerspruill.com. Mike may be reached at 919.783.2851 or mslipsky@poynerspruill.com.

Physical Address: 301 Fayetteville Street, Suite 1900, Raleigh, NC 27601 | © Poyner Spruill LLP. All rights reserved.

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