Democracy in the Digital Age

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Freedom of Expression in the Americas and Europe's 'Right to be Forgotten' 

This report from the Peter D. Bell Rule of Law Program assesses the merits and consequences of the “right to be forgotten online,” a legal doctrine developed in recent years by courts in the European Union to protect individual privacy. This emerging right allows individuals to request that search engines 'delist' information about them that they consider inadequate, irrelevant or excessive. The European Court of Justice is now considering expanding the doctrine beyond the confines of the EU, essentially applying the right to be forgotten online to all jurisdictions worldwide. 

In the report, the authors ask critical questions about the appropriate balance and potential conflicts between the right to be forgotten and fundamental freedoms of expression and information. They pay special attention to the potential costs and impact of the “extraterritorial” application of the doctrine on historical memory, transparency, and accountability for corruption and human rights violations in the Americas.

Conclusions and Recommendations:

• Confront the problem. This is the moment to seriously address the real concerns that the right to be forgotten online seeks to solve—especially given that judges and other authorities in the Americas are regularly being called upon to make decisions that can seriously compromise the functioning of the internet and the protection of fundamental rights. 
   
• Rely on existing Inter-American standards. In the Americas, any restriction of the right to freedom of expression on the street, in a newspaper, or on the internet must be evaluated in light of the strong freedom of expression standards developed by the countries of the hemisphere and by the Inter-American System. 
   
• Initiate a transatlantic dialogue. Given the imminent possibility that a decision by the European Court of Justice could attempt to expand the right to be forgotten online beyond the borders of the European Union, a legal and political dialogue between the EU and the countries of the Americas should be a priority. 
   
• Identify alternative solutions. The right to be forgotten online is a disproportionate solution to a real problem. Avoiding its application and safeguarding the robust protection of freedom of expression and information in the Americas requires finding alternative legal and technological solutions. 

This report is made possible in part thanks to support from Google.