Wednesday, June 7, 2017
Amy Gajda, Tulane University Law School, has published Privacy, Press, and a Right to Be Forgotten in the United States. Here is the abstract.
When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that suggests at least in part the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value of older truthful information and decide at times that privacy should win out. In other words, they support the idea that an individual whose past has been revealed can sue for invasion of privacy. This paper explores Right to Be Forgotten-like language and sensibilities in United States jurisprudence and suggests that such a Right has a foundation in historical case law and present-day statutes. It argues that the legal conception of privacy in one’s past has some limited practical and important purposes, but also that any Right to Be Forgotten must be cabined effectively by presuming newsworthiness — a word defined similarly in law and journalism — in order to protect significant and competing First Amendment press interests.
The full text is not available from SSRN.