Additional Thoughts on “The Right to Hide the Published Truth”

Private citizens have a right to remove significant falsehoods from the public record. The law of defamation clearly allows for retractions and damage payments if provable lies are published.

Under the New York Times v. Sullivan test, public figures have less leverage here, as the press is granted a First Amendment right to report in the public interest, even if that reporting subsequently proves to be not entirely accurate. Thus is the price of fame. Of course, even under this test, a newspaper editor publishing harmful statements with knowledge of or reckless disregard for its falsity is still liable for defamation.

So the law offers retraction and compensation to those damaged by published lies. Is this enough to protect people from today’s ravenous information machine where anyone can become a worldwide publisher and anyone can find her actions or attributes discussed on a forum read by thousands – even millions? If we protect people from published lies, should we also protect people from the published truth?

Of course, our law does protect some people from published truth in certain circumstances. What is the concept of privacy, after all, but a right to hide certain truths? Nearly every US state and territory passed laws against involuntary pornography – a term describing publication where someone posts nude or otherwise compromising pictures of someone he has been intimate with. The pictured subject can use these laws to remove the photos from display on the internet and to gather some measure of punishment against the person posting the pictures. The accuracy of these pictures does not affect the victim’s rights. The information can be removed with no regard to truth or falsity contained in the information. The victims’ rights to privacy in such matters trumps all.

In other matters, however, personal rights of overall privacy are severely limited. While Louis Brandeis in 1890’s Harvard Law Review, prior to his ascent to the U.S. Supreme Court, envisioned a right of privacy where the Boston press could be punished for reporting gossip gleaned at parties of the rich, such broad “right to be left alone” against the press has never emerged in this country. Brandeis and his law partner were concerned about new intrusive technologies like portable cameras, but they would be shocked that 130 years later, given ubiquitous camera phones, audio recorders and IoT technology that strips away all of our private obscurity, that US law has not placed more restrictions on public reporting of private lives.

Instead our current privacy protections are situational and aimed more at the types of entities gathering data than fundamental protection of private lives. In other words, we have some personal privacy restrictions under the Bill of Rights that affect government surveillance and control of our bodies, and we have a few state laws that grant limited privacy rights against private entities and their marketing around personal data or their capture of limited biometric data. We have protections involving publication of certain kinds of data like financial account information and health care treatment data in limited circumstances. Information about children (and, in California, teenage social media use) is given limited protection.

Otherwise, publishing our personal information is fair game in this country. If the New York Post wants to publish that private citizen George Costanza sits in his underwear most nights watching television and eating a big block of cheese, then the Post can do so without fear of legal reprimand. If a reporter sees you drinking 6 vodka tonics in one evening, she can say so in print.

Which brings us to the question of The Right to Hide Published Truth – which is primarily a concept recognized on Continental Europe. The Europeans call it a right to be forgotten, which is blatantly wrong because it only applies in very limited circumstances to restricted categories of data, or a right of erasure, which at least covers part of the concept. I wrote a column recently on this topic calling the EU rule that forces Google to remove links to news stories of embarrassing matters the right to hide the truth.  But, as discussed above, all privacy rules are rights to hide the truth in one fashion or the other, so the European rules forcing search engines to strip away links to embarrassing news stories is more accurately described as the right to partially hide published truth.

The problem I have with this EU-created right is that published truth is generally not private information. The first case recognizing the right arose from a man’s embarrassment that he had an official property foreclosure reported in his local newspaper. This event may be humiliating and likely irrelevant to an understanding of this man’s character, but it is a public event nonetheless. The bank needed to follow official rules to effectuate the foreclosure, and all such real estate actions are a matter of public record.  This was not a report on how the man spent his evenings at home or who he chose to associate with. This was a public act resulting from a public petition for the bank’s enforcement of its own rights as a property lender.

The EU’s own ambivalence about this right to hide the published truth can be seen in the way they enforce it. Google must remove its link to the matter, but the newspaper’s original reporting is allowed to remain on the internet. This is like saying that I don’t want you to visit a certain restaurant so I won’t tell you its address, but if you find the address another way you are welcome to go there. If you really wanted the event “forgotten” it would be removed entirely from the web. Instead, the EU once again finds a way to create hurdles for US tech companies without even trying to accomplish the restriction they claim to be promoting. 

It is unlikely that similar rules in the US would survive First Amendment court challenges, so I don’t expect to see them here. California has implemented a partial personal right in some circumstances to make private for-profit companies delete some of the information they hold on you. This is a far cry from forcing Google or Bing to remove links to news stories reporting about public and official actions taken against you. Extending privacy protections to masking the public record may help people in some circumstances, but at what cost?

The EU would prefer to hide the truth because it prioritizes privacy. The US would prefer to limit privacy because it prioritizes truth and fuller knowledge. Both are logical conclusions to a society’s baseline priorities.