领域：垂类场景 · 法律

THE RIGHT TO BE FORGOTTENJeffrey Rosen*At the end of January, the European Commissioner for Justice, Fundamen- tal Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right—the “right to be forgotten.” The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation. Although Reding depicted the new right as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizes le droit à l’oubli—or the “right of oblivion”—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page.European regulators believe that all citizens face the difficulty of escaping their past now that the Internet records everything and forgets nothing—a difficulty that used to be limited to convicted criminals. When Commissioner Reding announced the new right to be forgotten on January 22, she noted the particular risk to teenagers who might reveal compromising information that they would later come to regret. She then articulated the core provision of the “right to be forgotten”: “If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.” In endorsing the new right, Reding downplayed its effect on free speech. “It is clear that the right to be forgotten cannot amount to a right of the total erasure of history,” she said.3 And relying on Reding’s speeches, press accounts of the newly proposed right to be forgotten have been similarly reassuring about its effect on free speech. In a post at the Atlantic.com, Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten,’ John Hendel writes that although the original proposals a year ago “would have potentially given people the ability to cull any digital reference—from the public record, journalism, or social networks—they deemed irrelevant and unflattering,” Reding had proposed a narrower definition of data that people have the right to remove: namely “personal data [people] have given out themselves.”4 According to Hendel “[t]his provision is key. The overhaul insists that Internet users control the data they put online, not the references in media or anywhere else.” But Hendel seems not to have parsed the regulations that were actually proposed three days later on January 25. They are not limited to personal data that people “have given out themselves”; instead, they create a new right to delete personal data, defined broadly as “any information relating to a data subject.”6 For this reason, they arguably create a legally enforceable right to demand the deletion of any photos or data that I post myself, even after they’ve gone viral, not to mention unflattering photos that include me or information about me that others post, whether or not it is true. In a widely cited blog post last March, Peter Fleischer, chief privacy counsel of Google, notes that the right to be forgotten, as discussed in Europe, often covers three separate categories, each of which proposes progressively greater threats to free speech.7 And the right to be forgotten, as proposed at the end of January, arguably applies in all three of Fleischer’s categories.The first category is the least controversial: “If I post something online, do I have the right to delete it again?” This involves cases where I post a photo on Facebook and later think better of it and want to take it down. Since Facebook and other social networking sites already allow me to do this, creating a legally enforceable right here is mostly symbolic and entirely unobjectionable. As proposed, the European right to be forgotten would also usefully put pressure on Facebook to abide by its own stated privacy policies by allowing users to confirm that photos and other data have been deleted from its archives after they are removed from public display. But the right to delete data becomes far more controversial when it involves Fleischer’s second category: “If I post something, and someone else copies it and re-posts it on their own site, do I have the right to delete it?” Imagine a teenager regrets posting a picture of herself with a bottle of beer on her own site and after deleting it, later discovers that several of her friends have copied and reposted the picture on their own sites. If she asks them to take down the pictures, and her friends refuse or cannot be found, should Facebook be forced to delete the picture from her friends’ albums without the owners’ consent based solely on the teenager’s objection? According to the proposed European Right to Forget, the default answer is almost certainly yes. According to the regulation, when someone demands the erasure of personal data, an Internet Service Provider “shall carry out the erasure without delay,” unless the retention of the data is “necessary” for exercising “the right of freedom of expression,” as defined by member states in their local laws.

翻译考点：
考点1：“codified”应译为“编入法典”
考点2：“First Amendment”应译为“第一修正案”
考点3：“think better of it”应译为“改变了主意”
考点4：“legally enforceable right”应译为“具有法律强制执行力的权利“