How A Right To Be Forgotten Stifles A Free Press And Free Expression

Thankfully, recently, the EU’s Court of Justice, has limited the scope of the “right to be forgotten,” so that sites can’t be forced to censor content outside of the EU. However, it still does apply within the EU, and that has real and significant consequences.

Just last week we received yet another notification from Google that one of our articles had been removed from certain (unrevealed) search results in Europe, due to a successful “right to be forgotten” petition. This is hardly the first time this has happened, though at least this time it’s not about the one guy who has sent a new RTBF demand every time we write about him. We’re still trying to figure out what to do with the latest one, which appears (like so many) to be someone who was convicted of a crime (in this particular case, counterfeiting) who is apparently upset that his name and past crimes come up in a search.

We had warned about this years ago, highlighting how a short-sighted attempt to deal with “privacy” would collide head on with free speech and a free press — and for the most part we were ignored. However, the NY Times has a fairly astounding story about how a RTBF demand from a guy who stabbed his own brother and wanted to hide the resulting press stories more or less bankrupted the publication that had the story:

One of those demands was from Vittorio Pecoraro, now in his 80s, who was stabbed by his brother, Umberto, in the 2008 seaside restaurant brawl. The brothers were arrested after the fight. Assault-related charges against Vittorio Pecoraro were effectively dropped when the authorities did not pursue them.

Vittorio Pecoraro sued Mr. Biancardi, citing the right to be forgotten. Mr. Biancardi refused to remove the article. The story had been based on information from the police, he said. Nothing was factually wrong.

But Vittorio Pecoraro argued that his privacy had been violated. The article was easily available and searchable online, and he had not been convicted of a crime. Yet because of PrimaDaNoi, what he considered a humiliating family argument had become the first thing that many people knew about him and his pizza and seafood restaurant, he said.

“I have a reputation, I have been here for 50 years, I am known all over,” Mr. Pecoraro said in an interview at the restaurant, Positano, where the 2008 fight had occurred.

As the article notes, a court ruled that the site, PrimaDaNoi, had to delete the stabbing story (this is pre-GDPR, under the older concept of the Right to be Forgotten in the EU). The author/publisher was also told to pay €10,000 for “harming the reputation” of Mr. Pecoraro. Biancardi appealed, but lost.

The article notes that this and some of Biancardi’s other attempts to fight off RTBF requests only seemed to attract more demands and more lawsuits. And it basically destroyed him and his news site:

By last year, Mr. Biancardi stopped fighting the takedown requests. The cost wasn’t worth it, he decided, and he deleted almost every article that people demanded. He lost weight and wasn’t sleeping.

Last September, exactly 13 years after starting PrimaDaNoi, he shut down the site.

Having faced tons of legal threats (and one very long and exhausting legal dispute ourselves) I can empathize with Biancardi. At times, the stress, annoyance and costs just don’t seem worth it. But, of course, in such situations, it means that those who want to censor negative press about themselves will succeed in their ultimate goal: to suppress information. And that’s a very troubling scenario as well.

The article quotes Daphne Keller, who we’ve quoted many times here at Techdirt, and whose been on our podcast frequently as well, calling this “mission creep”:

“There has been real mission creep with the right to be forgotten,” said Daphne Keller, a lawyer at Stanford University’s Center for Internet and Society. “First it was supposed to be about information found using search engines, but now we see it affecting news reporting.”

Of course, some will argue that there’s no mission creep at all here. Many insisted that this was really about privacy and search engines and “data protection.” But plenty of people had to know how this would turn out in the end, with news stories being disappeared. Indeed, folks like Daphne were among the leading voices warning EU policy makers of this kind of result. But it didn’t work. And now we have this terrible situation that doesn’t actually protect “privacy” at all — but does mean that a free press is regularly stifled.
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