McKay Cunningham, Privacy Law That Does Not Protect Privacy, Forgetting the Right to Be Forgotten (February 1, 2017). Buffalo Law Review Vol. 65, No. 3, Forthcoming. Available at SSRN
The newly conferred right to be forgotten allows Europeans to erase “irrelevant” information about themselves from Internet searches. Most American scholars decry the perceived infringement of free expression and highlight the censorship implicit within the right to be forgotten. But few commentators have noted the practicalities. The right to be forgotten, as applied, is not working. As soon as European law strips content from Google searches, for example, that content is added back into the cyber commons through alternative avenues. The Internet of Things, diversifying search engines, and the Dark and Deep Web undermine laws that seek to control Internet content. The controversy, in other words, may be theoretical only, since implementation of the right to be forgotten falters against Internet resilience.
This Article suggests that European policymakers failed to conform their privacy law to the Internet’s architecture. They failed to account for the borderless flow of information, leaving the ongoing controversy over free expression and censorship moot. The enclosed submission advances a new model that tailors privacy regulation to the specific harm occasioned by its absence.