Brooklyn Law Review


Search engines have profoundly changed the relationship between privacy and free speech by making personal information widely and cheaply available to a global audience. This has raised many concerns both over how online companies handle the information they collect and how regular citizens use online services to invade other people’s privacy. One way Europe has addressed this change is by providing European Union citizens with a right to petition search engines to deindex links from search results—a so-called “right to be forgotten.” If the information contained in a search result is “inadequate, irrelevant or no longer relevant,” the search engine now has an obligation to make the link unsearchable on their platform in the EU. In the United States, no such right to be forgotten exists. Many scholars have argued that such a right is irreconcilable with the First Amendment and American notions of free speech, noting that European law places a higher premium on privacy over free speech than the American constitution will allow for. Up until now, commentators have framed the right to be forgotten as a privacy right. This article posits that conceptualizing the right to be forgotten as a publicity right would make it more palatable to American lawmakers, largely due to the fact it reframes a highly theoretical moral right as a concrete economic guarantee against a search engine’s unfair use of a person’s image, name, or likeness for profit.