Lisa Owings


This Article advocates a new test for balancing free speech and privacy interests online. There should be a three-prong test for whether, and under what circumstances, a user may request deletion of online data under the right to be forgotten. First, if the information is the publication of a private fact that is offensive to a reasonable person and not newsworthy, it should never be published unless the individual chooses to do so. Second, if individuals posted the information about themselves or as an expression of their opinion, they should have the right to remove it. This should apply not only to sensitive information such as financial or medical data, but to any data the individual posts. Third, if the information is not relevant to the circumstances under which it has been posted or is outdated, and if there is not a compelling reason for it to remain publicly available, then it should be removed. These prongs may stand alone or overlap depending on the circumstances of the individual. Current legal protections, especially in the United States, are scarce and lack effective means of enforcing the removal.

Part Two of this Article focuses on the Spanish court ruling and its impact on Google. The section will discuss what the court means when it says the information should be relevant and timely and why these are necessary for information removal. Part Two also discusses how Google began implementing the ruling and why this may not be the best solution for allowing individuals to remove results from Google's site. Finally, Part Two discusses counter-arguments to the ruling and the merits of each.

Part Three discusses the proposed European Union data law, which recognizes a right for individuals to have data privacy in their online interactions. It discusses the history and current status of the proposal, and the arguments against its passage. Part Three also focuses on how such a law would be implemented and potential negative effects that could result from the law.

Part Four promotes a global solution that recognizes and respects the Google ruling and the EU proposal, but also respects free speech. By passing a law in the United States that is substantially similar to the proposal in the European Union, the law would not only allow corporations to know where they stand but also prevent a "patchwork Internet" that would result from some nations having access to search results that other nations do not. This patchwork Internet should be avoided except when the search engine is providing specifically local results because it impairs the consistency of information that is available throughout the world. Although the United States is under no obligation to pass or follow a European law, many of the corporations at the center of the right to be forgotten controversy are U.S. corporations. By passing a data removal law, the United States would be able to apply its own goals for information privacy and determine what online privacy it will allow its citizens to protect.