State Right to be Forgotten Policy

Introduction

All across the United States, state laws allow individuals to remove records containing disparaging information, including personal bankruptcy and juvenile criminal history. California has recently enacted an important Right to Delete law that requires internet companies to remove personal information of minors. And Americans broadly support a Right to be Forgotten.

California's Eraser Law

California recently adopted the California Eraser Law, effective January 1, 2015. The law provides California minors with a narrow but significant “right to be forgotten.” California minors may now “remove or request and obtain removal of content or information” they posted on an operator’s website, application, or online service. The minor must be a registered user of the website.

The first state law of its kind, this law increases privacy protections to California minors, allowing them to effectively erase information and content they posted to social media. These increased protections promote free expression in minors by curbing the permanency of social media posts that would otherwise follow them throughout their adult life.

Additional Resources

• EPIC: The Right to Be Forgotten (Google v. Spain)
• EPIC: Expungement. The social consequences of a criminal record can lead to the denial of an individual's right to civic participation. Life, subsequent to an arrest, is permanently altered. Regardless of whether an individual has been convicted, an arrest or citation typically persists on a criminal record. Therefore, even a person who has had the charges against them dropped may be subject to a degree of social ostracism and a de facto public finding of guilt. Some states permit individuals who are arrested, but not convicted, to expunge their arrest records. Others permit some convicts to apply for expungements after time has passed from the completion of their sentences.
• EPIC: G.D. v. Kenny. In G.D. v. Kenny, a case raising both defamation and privacy tort claims, the Supreme Court of New Jersey has held that defendants are entitled to assert truth as a defense, even when the relevant facts are subject to an expungement order under a state statute. The Court relied on the fact that criminal conviction information is disseminated before the entry of an expungement judgement. In an amicus brief, EPIC had urged the New Jersey Supreme Court to preserve the value of expungement and further argued that data broker firms will make available inaccurate and incomplete information if expungement orders are not enforced by the state. The case may have implications for the "Right to be Forgotten."
• Marc Rotenberg, Op-Ed, Google's Position Makes No Sense, USA Today, Jan. 22, 2015.
• Marc Rotenberg, The Right To Be Forgotten, The Diane Rehm Show, National Public Radio, Jan. 5, 2015.
• European Commission: Factsheet on the “Right to be Forgotten” Ruling
• Debating Europe: Arguments For and Against EU Data Protection Rules
• Lexology: Get to Know California’s ‘Online Eraser’ Law

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