Canadian Government Leaning Towards A Right To Be Forgotten It Can Enforce Anywhere In The World

from the I-for-one-welcome-our-new-Canadian-overlords dept

It looks as though the "Right to Be Forgotten" will be crossing the Atlantic and setting up shop just north of the United States. The Canadian Privacy Commissioner has already stated existing Canadian privacy laws allow for this, but there's been no statutory adoption of the Commissioner's theory.

The idea that Canadians should join their European counterparts in being able to selectively erase personal information continues to be pushed by the Privacy Commissioner. Speaking at a recent conference in Toronto, Privacy Commissioner Daniel Therrien reiterated his belief Canadians should be offered this dubious "right."

Therrien said he continues to support the concept of “the right to be forgotten” — which has been adopted in other jurisdictions through the European Union’s General Data Protection Regulation.

“[I]nformation about individuals is much easier to find with the internet, thanks to search engines and other functions. The information that is found will often be taken out of context. It is easily replicable and is very difficult to delete,” said Therrien.

“All to say that information that went to reputation before the internet, that may be information known to a small circle of people, with the internet, is now potentially known to many, many people. Out of context, that information may be inaccurate and, moreover, may create real consequences for people. Reputation matters.”

Reputation does matter. That's the problem with the RTBF. While there are legitimate uses, there are also plenty of people willing to abuse it to obtain an unearned reputation. Fortunately, this abuse is routinely called out by press outlets hit with RTBF requests to delete unfavorable coverage or criticism.

The Privacy Commissioner's pitch continues and the Canadian Parliament seems amenable to the idea. The committee handling privacy, information access, and ethics has issued a report nudging the Canadian government towards the adoption of the Right to Be Forgotten. But its conclusions are somewhat contrary to the Privacy Commissioner's assertions. The committee likes the idea but points out these protections are not built into Canada's existing privacy laws.

The Committee’s first finding in this regard was that when online reputational damage occurs in the context of personal relationships rather than commercial transactions, PIPEDA does not apply (since the latter only applies to the collection, use and disclosure of personal information in a commercial context).   Moreover, the Committee noted that the Criminal Code treats a number of related offences, such as regards the publication of intimate images without consent. Accordingly, the Committee clarified that the scope of their analysis was limited to the protection of privacy and online reputation in the context of commercial transactions.

With this, the committee appears to believe it can amend PIPEDA to include a "right to be forgotten," but one more expansive than the European model. According to this, it would appear to cover things like revenge porn.

As regards the right to erasure, the Committee noted that PIPEDA does not expressly contain such a right, although the principles of “consent”, “limited retention” and “accuracy” may be applied in some instances to give effect to a limited right of erasure in certain circumstances.

For example, according to Principle 4.3.8 of Schedule 1 to PIPEDA, an individual has the right to withdraw consent to the collection, use and disclosure of his/her personal information. If this is then combined with the limited retention principle, pursuant to which an organization may only retain personal information for so long as it is necessary for the fulfilment of the purposes for which it was collected, then (in some circumstances) an individual may successfully argue that, upon withdrawal of their consent, the organisation that holds their information should destroy it.

[...]

In this context, several of the Committee witnesses argued that PIPEDA should be amended to create a more comprehensive right of erasure (to address situations of cyberbullying or revenge porn, for example) that would be similar in scope to the right of erasure found in the GDPR.

It's not that revenge porn and cyberbullying should be ignored. It's more of a question whether amending the law will fix the problem without a lot of collateral damage. Fortunately, some of the committee members have expressed this exact concern, noting the potential PIPEDA amendments would likely adversely affect Canadian freedom of expression.

Unfortunately, there's a larger problem that's not discussed in the report: the recent Equustek decision. In this lawsuit, Canada's top court declared delisting orders issued in Canada were valid worldwide. Google challenged this decision in the US (Equustek did not make an appearance), obtaining a judgment finding the Canadian decision could not be applied extraterritorially. The committee believes the ruling could be read as covering personal information, not just trade secrets (which were central to the Equustek case). It also appears to indicate that any delisting requests can be enforced worldwide, no matter where the recipient of the order resides.

Further, the committee apparently believes the tech companies that will be delisting info aren't properly equipped to evaluate the public's interest in removal/non-removal when handling requests. This suggests the Canadian government may take a more hands-on approach if it decides to create a Right to Be Forgotten. Fortunately, some of the committee comments suggest they fear over-compliance rather than under-compliance, which may mean the Canadian government's involvement may actually include policing requests for abuse of the law.

Even with these cautionary comments, the concern remains that Canada will create its own version of RTBF, but with the added nasty side effect of the nation's highest court declaring orders issued in Canada must be executed by companies located in other countries. The committee's report [PDF] spends no time discussing this unfortunate ruling or its adverse effects if the world's tech companies are subjected to extraterritorial delisting orders. But that's what will happen if PIPEDA is amended: Canada will be giving its citizens the opportunity to engage in worldwide censorship.

Filed Under: canada, right to be forgotten

Google Asks US Court To Block Terrible Canadian Supreme Court Ruling On Global Censorship

from the jurisdictional-mess dept

Going back to the earliest days of Techdirt, we wrote numerous times about what a jurisdictional mess the internet was for various laws and legal regimes. But, even so, decades later, it's still pretty shocking just how messy Google's dispute over global censorship with Canadian courts has become. Last month, we wrote about a positively terrible decision in the Canadian Supreme Court, which upheld an appeals court and a district court, ruling that a Canadian court could order a site to block access to content on a global basis. The lawsuit itself, brought by a company called Equustek against another company apparently selling knockoff/counterfeit equipment, pulled Google into its orbit when the court ordered Google, as a non-party in the case -- to block access worldwide to sites managed by the defendant in the lawsuit (who never showed up in court).

Google pointed out (quite reasonably) that Canadian courts don't have jurisdiction over the global internet any more than a Chinese or Iranian or Russian court would have jurisdiction across the globe. Over and over again, the Canadian courts more or less ignored the issue, saying, "doesn't matter, block it, this is bad stuff." We've discussed at great length the dangers of such a decision, so we won't rehash it now -- go read the previous posts, if you want to review that argument.

But here's where things get... odd. Most people assumed that this was the end of the road on this case. The Supreme Court in Canada is the top of the chain. There was no appeal. Google could (and probably will, if it hasn't already) petition the Canadian government to clarify the law on this. And it may push for clauses in trade agreements that block this sort of thing as well. Some even argued that Google might be able to make an "ISDS" claim out of this (though, that would be messy...). But, apparently, Google felt it had one more way to crack this nut: it has filed for declaratory relief in the US.

In short, Google is going to a US court and saying, "this ruling in Canada is offensive to our laws and Constitution, and you should block the Canadian courts from enforcing it." This is... fascinating from a legal geek standpoint. We do have the SPEECH Act, which bars foreign judgments being enforced in the US when it would go against the First Amendment, but this is slightly different. Google is arguing that a US court should, at the very least, stop Canada from being able to enforce the blockade in the US, because that violates both the First Amendment and Section 230 of the CDA.

This Court has personal jurisdiction over the Defendants because, inter alia, the Defendants have knowingly engaged in a course of conduct whereby they sought and obtained injunctive orders in the Equustek v. Jack litigation in Canada that are expressly aimed at requiring Google to undertake actions in the United States—specifically, to delist search results in the United States and throughout the world. In November 2012 Equustek served Google with a Notice of Application to the British Columbia court at Google’s offices in Mountain View, California. Equustek thereafter renewed the Application for a delisting injunction on May 13, 2013; sought and obtained a trial court injunction on June 13, 2014; and maintained its position adverse to Google through the Canadian appellate process. The Supreme Court of Canada confirmed in its June 28, 2017 opinion that the Canadian order was intended to require Google to take steps where its search engine is controlled—namely, California.

And here's where things get really interesting. The Canadian Supreme Court ruling argued that the "harm" presented by Google up north was merely "theoretical" rather than real. However, Google wants the US court to rule that such an injunction violates the First Amendment and Section 230 of the CDA... at which point the harm is no longer theoretical because it will have a court ruling showing that the blockade has actually censored speech.

Of course, this may lead to a long fight in the US, which may also lead to many years of appeals and whatnot -- and the end result may be... who the hell knows what? What happens when you have two court systems in two different countries completely at odds with one another, with one claiming sovereignty over actions taken in the other's territory (and everywhere else)? One would think that the US would win out in that situation, but... it's kind of uncharted waters. And that by itself reinforces the very point that Google was trying to make, and which three levels of Canadian courts brushed off as no big deal. Clearly, this is going to be a case worth following, as the question of court jurisdiction on the internet gets more and more... fascinating.

Filed Under: canada, first amendment, free speech, global block, jurisdiction, right to be forgotten, us
Companies: equustek, google

Top European Court To Consider If EU Countries Can Censor The Global Internet

from the it's-spreading... dept

Last month we wrote about the tragic and hugely problematic ruling in Canada that said a Canadian court could order global censorship of content it deems to be illegal. As lots of people pointed out, that is going to have dangerous consequences for speech around the world. If you accept that Canada can censor the global internet, what's to stop China, Iran or Russia from claiming the same rights?

And now we'll get to find out if the EU similarly believes in the ability of one country to demand global censorship online. In another case that we've been following, French data protection officials had been demanding Google censor content globally, and Google had been refusing. Now, the issue has been sent to the EU Court of Justice, the very same court who created this mess three years ago in saying that Google was subject to "right to be forgotten" claims. Google had reasonably interpreted the law to just apply in the EU (where the jurisdiction existed). But now the same court will decide if EU officials can censor globally.

One hopes that the sheer absurdity of the situation may lead the CJEU to start to recognize just how problematic its ruling was back in 2014, but somehow, that's unlikely. We'll certainly be paying attention to this case...

Filed Under: censorship, cjeu, eu, france, free speech, global censorship, jurisdiction, right to be forgotten, rtbf
Companies: google

Canadian Supreme Court Says It's Fine To Censor The Global Internet; Authoritarians & Hollywood Cheer...

from the d'oh-canada dept

For the past few years, we've been covering the worrisome Google v. Equustek Solutions case in Canada. The case started out as a trademark case, in which Equustek claimed that another company was infringing on its trademarks online. That's fine. The problem was that the lower court issued an injunction against Google (a non-party in the case) that said it had to block entire sites worldwide. Blocking sites already raises some concerns, but the worldwide part is the real problem. In 2015, an appeals court upheld that decision, and earlier today the Canadian Supreme Court agreed with both lower courts in a 7-2 decision.

The court is dismissive of any concerns about how an order from one country to block things on the internet globally might be abused -- calling the concerns "theoretical" and unproven. That may not last very long. First, let's look at the decision itself, and then the horrific possible consequences for free speech and innovation.

Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible.

This is a nifty trick: because you can't show that this order might offend freedom of expression laws somewhere else in the world, let's just assume it's fair to apply absolutely everywhere. But... that's not the issue. It's not for a Canadian court to determine if its rulings obey the laws in other countries. A Canadian court has jurisdiction over Canada. And that's it. This is not about balancing theoretical harm v. real harm, this is about jurisdiction.

The court tries to get around the jurisdictional question by saying because Google is available in Canada, somehow that makes it okay to censor globally, and further, notes that the lack of borders on the internet require such a result (ignoring how this will almost certainly create massive problems down the road):

The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were deindexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.

This sounds nice, but makes no sense. First, again, a Canadian court only has jurisdiction over Canada. If the irreperable harm is happening elsewhere, then that's not the Canadian court's jurisdction and it has no say in the matter. The fact that purchasers outside Canada can find Datalink's website isn't a matter for Canadian courts. This may sound unfair -- as the court seemed to think -- but take two seconds to flip the script and think about how this would work with a ruling in China about stories concerning Tiananmen Square, or in Saudi Arabia about LGBTQ rights -- saying that Google had to de-index such sites in Canada, because they violated local law.

The second scary part about the ruling is that it's not just saying that Google needs to de-index sites shown to involve infringement, but that it needs to de-index an entire site because other pages on that site might, at some future point, infringe. Really. The two dissenting judges pointed out how problematic this aspect is in the ruling, and how it actually gives Equustek even more than it was seeking.

The December 2012 Order gives Equustek more than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether.

And that creates an additional problem. Since Equustek is getting more than it wanted, and because the defendant in the original case has ignored the court process, it's likely that this "temporary" injunction will effectively become a permanent one:

In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek’s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so.

Thus, the dissent notes, this is, in effect, a permanent injunction. And, it doesn't come close to the standards necessary for such a permanent injunction -- specifically in dragging a third party (i.e., Google) into the remedy:

As we will outline below, the Google Order enjoins a nonparty, yet Google has not aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has no information relevant to the underlying proceedings. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and Equustek has alternative remedies.

And, it fears that Google will be forced to continue to monitor and de-index any new website set up by Datalink:

The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace delisted ones. In fact, the Google Order has been amended at least seven times to capture Datalink’s new sites (orders dated November 27, 2014; April 22, 2015; June 4, 2015; July 3, 2015; September 15, 2015; January 12, 2016 and March 30, 2016). In our view, courts should avoid granting injunctions that require such cumbersome courtsupervised updating.

Finally, the dissent points out that it appears Datalink has assets in France, and Equustek could easily go after them there, and that would be a remedy that leaves Google out of the process.

Unfortunately, the dissent does not really delve into the problematic nature of a Canadian court claiming it can force a website to de-list sites globally. I already provided the Chinese/Saudi Arabian examples above, but Canadian law professor Michael Geist goes much deeper:

Google will obviously abide the ruling, but as I noted last year, what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow. The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries.

Geist also notes that this is part of the "drip drip drip" nature of mutliple rulings chipping away at free expression online:

This last paragraph noting that Google already removes links to certain content (hate speech, child pornography, and copyright takedowns) highlights the cumulative effect of court decisions and regulations that individually may seem reasonable but which quickly move toward takedowns of all kinds. In fact, the majority cites the international support for Internet injunctions with global effect as a justification for its own order. The net result is the expectation of all countries and courts that they may issue global takedown orders regardless of the impact on Internet users outside the jurisdiction or on Internet intermediaries.

Furthermore, Geist highlights where the court went wrong in saying that because it's "easy" for Google to de-index a site worldwide, there's no burden. But the technical burden is not the issue. The legal burden is:

Of course, the inconvenience does not come from the technical side of removing search results, which is indeed trivial. The real inconvenience comes from conflict of laws and the potential for global takedown orders coming from across the planet, thereby opening the door to other countries choosing what Canadians might be able to find in search results. Those issues – along with the need to identify the laws in other countries in order to avoid conflicts – do involve significant inconvenience and expense.

Indeed, a ruling like this likely will give Google more power over others, because Google has a large legal team that can handle this. Most other sites do not. Smaller sites cannot scour the globe to find out where such global takedown orders are legal and where they are not.

Another Canadian lawyer, Howard Knopf, is even more forward in pointing out how this will be abused by Hollywood:

I can just see the RIAA and MPAA salivating that the thought of getting global injunctions against Google at an interlocutory hearing from a trial judge in British Columbia. Will the mere fact that copyright subsists in BC - as it does virtually everywhere - be sufficient to get the injunction? One can imagine that few if any defendants would appear in such proceedings.

And, worse, he points out that even if Canadian trial judges see through that ploy, the RIAA & MPAA can just go jurisdiction shopping for other locations where courts will cite this case as a reason they can issue preliminary global injunctions. Canada just handed anyone who wants it a tool for global censorship. Anyone from authoritarian regimes to Hollywood may now begin to use it.

I recognize that some Google haters are cheering on this ruling because they will cheer on anything that makes Google look bad -- and the RIAA/MPAA types are celebrating this new power over Google. But this is extremely short sighted. Enabling countries to reach across borders to censor the internet does not end well. You are giving veto power over speech to the most repressive regimes, just because you dislike a company. If that's your view, you should perhaps check your priorities more carefully. And this goes doubly for the RIAA and MPAA. Those two organizations both used to fight for free speech. They both used to fight for the ability of musicians and filmmakers to express themselves. This tool that they helped create (they were involved in this case, pushing the view that the court eventually sided with), will be turned around and used to censor music and movies worldwide -- and the legacy recording and film industries will have no one to blame but themselves.

Filed Under: canada, censorship, global, hollywood, injunction, jurisdiction, right to be forgotten, trademark
Companies: datalink, equustek solutions, google

New EU Lawsuit Claims Google Failed To Forget 'Sensitive' Information, Such As Their 'Political Affiliation'

from the oh-come-on dept

For years, we've pointed out that the "Right to be Forgotten" (RTBF) in Europe is a dangerous tool that has been and will continue to be abused as a tool to censor freedom of expression, while hiding behind a claim that it is to protect "privacy." While the concept has been around for a while, it really took off online with a EU Court of Justice (CJEU) ruling from three years ago, saying that Google's search results index counted as a data repository on someone, and thus, an individual could force Google to "delink" certain results from searches on their names. But, the court left some leeway to Google to decide whether or not the requests were valid. Basically, if the information is no longer relevant for the public to know about the person, then Google should delink it. Now, obviously, that's a horribly subjective standard, and Google has had to staff up on people to determine whether or not any requested delinking qualifies.

Part of the problem with all of this is that it seems to produce tremendous liability. Fail to get a delinking request "right" and Google is right back in court, which is exactly where we are today. Google has rejected just under 60% of requests to delink info in Europe, and four individuals in France were so upset by this, that they complained that their rights were being violated. The French data protection regulator, CNIL, actually agreed with Google that the information shouldn't be "forgotten." However, the four have appealed their case, and it's been kicked back to the European Court of Justice. The four individuals are claiming that the information is "sensitive data" and are suggesting that just being "sensitive data" alone is enough to require forgetting -- no matter what the "public interest" may be in that info.

As Google has noted in a blog post, there are serious questions here about whether or not people can hide information from their past that may be relevant:

The CJEU now has to decide whether "sensitive personal data"—such as the political allegiance of an individual, or a past criminal conviction reported in the press—should always outweigh the public interest.

The tricky thing with this kind of information is that it is often important for people to know and it is frequently reported in newspapers and elsewhere. Requiring automatic delisting from search engines, without any public interest balancing test, risks creating a dangerous loophole. Such a loophole would enable anyone to demand removal of links that should remain up in the public interest, simply by claiming they contain some element of sensitive personal data.

While that is an important point -- equally important is the question of how this can be massively damaging for basically any other company, that doesn't have Google's legal team and resources to fight. The fact that anyone disagreeing with your decision on a RTBF request can put a company at risk for failing to delete something, and take them to court repeatedly, means that most companies are going to default to deleting.

At least with things like the DMCA notice-and-takedown provision -- which is already massively and widely abused to censor content -- there are fairly clear and strict rules about how a takedown notice works, and what it requires. With the RTBF, it's not at all clear, and risks significant and repeated litigation. As it stands, the system is a recipe for widespread censorship of often important information.

Filed Under: cjeu, eu, france, political affiliation, right to be forgotten, sensitive data
Companies: google

Story About Ex-Sony Pictures Boss Magically Disappears From Gawker; His Lawyer Tells Reporters Not To Talk About It

from the right-to-be-forgotten? dept

Can people use a bankruptcy proceeding to create a "right to be forgotten"? We already know that Europe has implemented a form of a right to be forgotten that it's now looking to expand. However, in the US, the First Amendment has protected us against such things -- even if some politicians don't realize it.

However, it appears that something has happened, hidden behind the sealed doors of Gawker's bankruptcy that has resulted in a story about ex-Sony Pictures boss Michael Lynton disappearing from the Gawker archive:

A 2015 Gawker article that highlighted leaked emails written by Sony Pictures CEO Michael Lynton has been quietly removed from the internet, the latest in a line of stories from the former digital media company to be disappeared under apparent legal pressure from powerful figures.

The story pieced together some of Lynton’s emails disclosed in the Sony Hack, the monstrous dump of company materials in late 2014 that was catastrophic for the studio and widely covered by the media.

Lynton -- who once claimed that nothing good has come from the internet ever -- left Sony Pictures recently to focus on being chair of the board at Snap, the company that does Snapchat (a company that kinda relies on that no good, very bad internet Lynton hates). But apparently, on the side, he was somehow secretly convincing the Gawker "estate" to delete some articles he didn't like.

This is different than when Univsion pulled down a bunch of Gawker stories after purchasing many of the company's assets out of bankruptcy. In that case, Univision claimed -- questionably -- that since it had purchased just the assets, but not liabilities, it had to take down any story that was subject to a lawsuit. This ignored a whole bunch of things, including the "first publication" rule, but whatever. In this case, the story was still hosted by what's left of Gawker. That is, when Gawker sold a bunch of assets to Univision, it did not sell the flagship "Gawker" site itself, but has instead maintained the archives. And that included some stories on Lynton that revealed things via the Sony Pictures email hack.

And thus it appears that some sort of settlement was reached behind the scenes, with no public explanation or details... to flat out delete a story that apparently Lynton or someone close to Lynton didn't like. As reporter Matthew Zeitlin notes, we should all be concerned that a news story can disappear just "because of opaque bankruptcy proceedings." And, of course, because this is the internet, the Streisand Effect is already taking over, with people passing around links to the story that was disappeared. The story in question, like many stories, was probably embarrassing to some people, but there's been no evidence presented (publicly at least) that it was untrue. No one has shown any evidence that the Sony hack emails that it was based on were not accurate. Ironically, the suppressed story itself is, somewhat, about using money and connections to do things that normal people can't do, so perhaps it's only fitting that a behind the scenes, opaque process was then used to try to memory hole that story.

But the story gets even worse. The Hollywood Reporter has also reported on this and notes that Lynton's lawyer, Andrew Celli, has warned its reporter, Eriq Gardner, not to even report on the disappearing story:

Celli made contact to The Hollywood Reporter's general counsel to express concern after I made inquiries about the vanished article with Gawker. He later suggested that to even repeat the gist of the original Gawker story would be damaging. He threatened a lawsuit and, referring to the Sony hack, told me, “There is a sin at the bottom of this. It’s wrong. The source for information is the result of a crime.”

This is, in the famed words of Popehat, what is known as censorious thuggery. Threatening people with litigation for reporting the news creates serious chilling effects. As Gardner notes in his article -- and as we've been reporting ourselves -- there seems to be a big business lately in so-called "reputation management" efforts to get embarrassing news stories disappeared from the internet. That should concern everyone. There's a reason that the US has a 1st Amendment and rejects things like a "Right to be Forgotten." Such things have a history of being abused by the rich and powerful to silence the press, just because the rich and powerful don't like those stories.

Even if one could give Lynton the benefit of the doubt in getting Gawker's estate to take down the original story, the fact that his lawyer then threatened another publication with a lawsuit just for reporting on the situation makes this even more problematic. Lynton may not like the internet very much, but that doesn't mean he gets to censor it at will.

Filed Under: michael lynton, right to be forgotten, threats
Companies: gawker, snap, sony, sony pictures

NY Senator Pulls Sponsorship From 'Right To Be Forgotten' Bill, Effectively Killing It

from the bad-idea,-meet-backlash dept

The Right to Be Forgotten™ (New York State Edition) is dead. The Media Law Resource Center reports the senator behind the bill (Tony Avella) has pretty much killed it by striking the enactment clause. This means Avella is no longer sponsoring this bill, leaving it to wander the halls of state congress like a child whose father "just stepped out to get some smokes" ten years ago.

It's up to some other senator to step up and attach their name (and reputation) to an incredibly stupid law. I doubt there's a line forming, not after the negative press it's received. The Assembly version lives on, however. Assemblyman David Weprin has a matching proposal, with the same broad language that would make it a civil violation (paired with government-levied penalties) for any site/service providing "inadequate," "irrelevant," or "excessive" information someone wants stricken from the face of the internet.

This is Weprin's second attempt to institute a New York State-only "right to be forgotten." His previous version is identical to this year's model, which shows bad ideas are just as subject to stagnation as the merely mediocre ones. The difference this year is lots of attention has been paid to Avella's version -- which appears to be nothing but a quick copy-paste job with a new sponsor. The Senate version is an outcast. The Assembly version has merely been ignored for more than year.

There's zero chance this will become law in 2017. But, if Weprin's anything to go by, there's always next year. Until its eventual reintroduction, here's Ken White's (Popehat) take on the bill, which will hopefully be passed along to New York legislators for their consideration:

This bill is a constitutional and policy disaster that shows no sign that the drafters made any attempt whatsoever to conform to the requirements of the constitution. It purports to punish both speakers and search engines for publishing—or indexing—truthful information protected by the First Amendment. There's no First Amendment exception for speech deemed "irrelevant" or "inadequate" or "excessive," and the rules for punishing "inaccurate" speech are already well-established and not followed by this bill. The bill is hopelessly vague, requiring speakers to guess at what some fact-finder will decide is "irrelevant" or "no longer material to current public debate," or how a fact-finder will balance (in defiance of the First Amendment) the harm of the speech and its relevance. The exceptions are haphazard and poorly defined, and the role of the New York Secretary of State in administering the law is unclear. This would be a bonanza for anyone who wanted to harass reporters, bloggers, search engines, and web sites to take down negative information, and would incentivize such harassment and inflict massive legal costs on anyone who wanted to stand up to a vexatious litigant.

Filed Under: david weprin, free speech, new york, right to be forgotten, tony avella

NY Legislators Looking At Installing A Free Speech-Stomping 'Right To Be Forgotten'

from the order-your-Constitution-Doormat-today! dept

New York state legislators apparently think the state's so cosmopolitan it may as well be Europe. As Adam Steinbaugh points out on Twitter, though, local comparisons aren't nearly as flattering.

[If you can't read/see the tweet]

New York legislature working diligently on overtaking California and Arizona on demonstrating least understanding of the First Amendment

There's nothing like being negatively compared to Arizona (remember the short-lived "First Amendment-protected activity is against the law" bill?) to take the gloss off the latest legislative ridiculousness. A new bill in the state legislature would make New York an outlier in constitutional protections (or no, it wouldn't, because it wouldn't survive a constitutional challenge, but for the sake of argument…). For no conceivable reason, the bill seeks to implement a New York-located "right to be forgotten." How that's supposed to work out when it's not the law in the other 49 states remains unexplained.

§ 50-f. Right to be forgotten act.

1. Upon the request from an individual, all search engines, indexers, publishers and any other persons or entities that make available, on or through the internet or other widely used computer-based network, program or service, information about the requester, shall remove information, articles, identifying information and other content about such individual, and links or indexes to any of the same, that is "inaccurate", "irrelevant", "inadequate" or "excessive" within thirty days of such request, and without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing. For purposes of this section, "inaccurate", "irrelevant", "inadequate", or "excessive" shall mean content, which after a significant lapse in time from its first publication, is no longer material to current public debate or discourse, especially when considered in light of the financial, reputational and/or demonstrable other harm that the information, article or other content is causing to the requester's professional, financial, reputational or other interest, with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester's role with regard to the matter is central and substantial.

This is a horribly-written, horribly-broad, no good, terrible-all-around proposal. I have no idea what sort of information could be described as "inadequate" or "excessive," and the chances are information that's truly "irrelevant" will sink to the bottom of search engine rankings soon enough.

The bill does not define any of these terms (well... not in any meaningful way), nor does it address how information that fits its inadequate definitions will be removed from the web when a great deal of hosting services lie far outside the law's jurisdiction.

On top of that, there's the question of what's "material to public debate/discourse." Who gets to decide what's still material? The person bringing the complaint? If so, the law is entirely subjective and provides no affirmative defense for those facing charges/fines under the law. It's as if the legislators crafting this law looked at the DMCA and decided it just wasn't abusable enough. Citizens clearly deserve a second, more streamlined route for the removal of criticism, unflattering photos, or whatever doesn't further the marketing of a person's brand.

Then there's the prior restraint. (This bill is truly breathtaking in its sheer level of unconstitutional shittiness.) The law forbids those served with a "right to be forgotten" order from discussing the government's content removal demands.

...without replacing such removed information, article or content with any disclaimer, takedown notice, hyperlink, or other replacement notice, information or content, or cooperating with any other person or entity who does any of the foregoing.

It's not just prior restraint on those served with an order. It's prior restraint that effectively silences everyone in the law's jurisdiction. Site A's order and subsequent content removal can't be discussed anywhere on that site. And Site A can't point to other sites discussing Site A's content removal, even if these other sites lie outside the law's jurisdiction.

This bill should -- if there's any amount of brain activity in the NY legislature -- die a swift and unceremonious death. But nothing this bad stays dead forever. It will return in some other shape or form months or years later because some people truly believe information doesn't want to be free -- it wants to be forgotten.

Filed Under: first amendment, gag order, new york, ny, prior restraint, right to be forgotten