Washington Law Review


Privacy, Press, and the Right to be Forgotten in the United States

March 27, 2018 | 93 Wash. L. Rev. 201

Abstract: When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, 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 embraces in a normative sense 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 recognize that an individual whose embarrassing past has been revealed by another can sue for invasion of privacy in the United States, even when the historic information was once public. This Article explores Right to Be Forgotten-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 may have some limited practical and important purposes but warns 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 interests at a time when people in high places have vowed to curb press freedoms.

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