I negate the resolution, resolved: The right to be forgotten from Internet searches

ought to be a civil right.

I define the Right to be Forgotten as
European Union Factsheet on the Right to be Forgotten, 2012
(http://ec.europa.eu/justice/dataprotection/files/factsheets/factsheet_data_protection_en.pdf)

Individuals have the right - under certain conditions - to ask search engines to remove
links with personal information about them. This applies where the information is
inaccurate, inadequate, irrelevant or excessive for the purposes of the data processing
(para 93 of the ruling). The court found that in this particular case the interference with
the right to be forgotten is not absolute but will always need to be balanced against
other fundamental rights, such as the freedom of expression and of the media (para 85
of the ruling). A case-by-case assessment is needed considering the type of information
in question, its sensitivity for the individuals private life and the interest of the public in
having access to that information. The role the person requesting the deletion plays in
public life might also be relevant.
I define ought as
Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547,
750 (1999)

Instead the historical dictionary definitions indicate that ought was understood to be
imperative. Johnson's Dictionary, supra note 177 (pages unnumbered), [t]o be obliged
by duty and also defined Oblige as [t]o bind; to impose obligation; to compel
something--thus it treated ought as binding or compelling, which sounds rather
imperative. Noah Webster still gave essentially the same definition of ought when he
published his American dictionary in 1828. See 1 Webster's Dictionary, supra note 313
(defining Ought as [t]o be held or bound in duty or moral obligation).
.

Civil Right is defined by Black's Law Dictionary (9th ed. 2009)

A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury.

Observation Two is my Value and Criteria: My value is societal

welfare measured by Rule Utilitarianism. The Judge should vote for
the best general rule to follow.
With Rule Utilitarianism, we are looking for general rules to follow. We do not judge decisions
one-by-one, but decide what is the best rule to follow as a general practice and once we decide

on that rule, we follow it even when in specific cases a case can be made for not following the
rule.
Stephanie Loomis-Price, Decision-Making in the Law: What Constitutes A Good Decision - the
Outcome or the Reasoning Behind It?, 12 Geo. J. Legal Ethics 623, 631 (1999)
The rule utilitarian, like the act utilitarian uses the consequence of general happiness to guide his
decisions, he does so in a two-stage procedure that seeks first to determine whether, as a
general rule, choosing a particular action over another would produce the most happiness for the
most people. Thus, unlike the act utilitarian, the rule utilitarian is not as concerned with the
circumstances of the individualized consequences of one particular choice, but rather looks to see
whether, if everyone chose to act in a particular manner when faced with this same choice, the
outcome would be good in the utilitarian sense that general happiness would increase.
36

37

Contention One: The Right to be Forgotten attacks free speech

A. Freedom of Speech is Absolute; we should follow Freedom of Speech as a Rule.
The First Amendment is an example of a binding rule that a rule utilitarian should
follow.
Solveig Singleton, Reviving A First Amendment Absolutism for the Internet, 3 Tex. Rev. L. & Pol. 279, 300-02
(1999)

First Amendment literalism entails, in the words of Justice Black, the view that when the
First Amendment states that Congress shall make no law it means just that--that
Congress *301 shall make no law restricting the freedom of speech. [A]ll regulation or
control of expression is barred.
111

I learned a long time ago that there are affirmative and negative words. The beginning of the First Amendment is that
Congress shall make no law. I understand that it is rather old-fashioned and shows a slight naivete to say that no
law means no law. It is one of the most amazing things about the ingeniousness of the times that strong arguments
are made, which almost convince me, that it is very foolish of me to think no law means no law. But what it says is
Congress shall make no law respecting an establishment of religion, and so on.
....
Then I move on to the words abridging the freedom of speech or of the press. It says Congress shall make no law
doing that. . . . And being a rather backward country fellow, I understand it to mean what the words say.
Gesticulations apart, I know of no way in the world to communicate ideas except by words. . . . It says no law, and
that is what I believe it means.
....

I am for the First Amendment from the first word to the last. I believe it means what it
says, and it says to me, Government shall keep its hands off religion. Government shall
not attempt to control the ideas a man has. Government shall not attempt to establish a
religion of any kind. Government shall not abridge freedom of the press or speech. It
shall let anybody talk in this country.
112

B. Freedom of Speech is the Most Important Right; When someone thinks the
internet has misleading or inaccurate information, the answer is not
censorship but speech to refute the information

Jeffrey Rosen, Free Speech, Privacy, and the Web That Never Forgets, 9 J. Telecomm. & High Tech. L. 345, 355-56
(2011)
When I wonder about how Brandeis would have resolved conflicts between privacy and free speech, I imagine he
would have come down on the side of free expression. He was the inventor of the idea that sunlight is the best
disinfectant, and his concurring opinion in Whitney v. California is the greatest and most inspiring essay on free
speech ever written in the 20th century.63 And here's what Brandeis said:
*356 Those who won our independence by revolution were not cowards. They did not fear political change. They did
not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless
reasoning applied through the processes of popular government, no danger flowing from speech can be deemed
clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the
evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an
emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my
opinion, is the command of the Constitution.64

C. If made into a civil right, the right to be forgotten will cause a far more restricted
internet.

Jeffrey Rosen, The Right to Be Forgotten, 64 Stan. L. Rev. Online 88 (2012)]

At the end of January, the European Commissioner for Justice, Fundamental 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.
D. Because different countries have differing ideas of the proper level of privacy
search engines would be forced to censor anything the most restrictive nation
deems unacceptable.
JEFFREY TOOBIN, New Yorker SEPTEMBER 29, 2014 I SSUE, The Solace of Oblivion In Europe, the right to be
forgotten trumps the Internet. 10/1/2014http://www.newyorker.com/magazine/2014/09/29/solace-oblivion Page 19 of
20Google and the Right to Be Forgotten
Still, the

day may come when a single court decision covering twenty-eight countries, as
in the Costeja case, looks downright appealing to Internet companies. Different
countries draw the line on these issues in different ways, and that creates particular
problems in the borderless world of the Internet . Now that the Court has issued its ruling in the

Costeja case, the claim goes back to a Spanish court, since it was brought by a Spanish lawyer regarding a Spanish
newspaper. Many countries are now starting to say that they want rules for the Internet

that respond to their own local laws, Jennifer Granick, of Stanford, said. It marks the
beginning of the end of the global Internet, where everyone has access to the same
information, and the beginning of an Internet where there are national networks, where
decisions by governments dictate which information people get access to. The Internet
as a whole is being Balkanized, and Europeans are going to have a very different
access to information than we have. It is clear, for the moment, that the Costeja decision has created a
real, if manageable, problem for Google. But suppose that the French establish their own definition of the right to be
forgotten, and the Danes establish another. Countries all around the world, applying their own laws

and traditions, could impose varying obligations on Google search results. The real risk here
is the second-order effects, Jonathan Zittrain, a professor at Harvard Law School and director of the Berkman Center
for Internet and Society, said. The Court may have established a perfectly reasonable test in this case. But then what
happens if the Brazilians come along and say, We want only search results that are consistent with our laws? It
becomes a contest about who can exert the most muscle on Google. Search companies might decide to

tailor their search results in order to offend the fewest countries, limiting all searches
according to the rules of the most restrictive country. As Zittrain put it, Then the convoy
will move only as fast as the slowest ship.
Contention Two: Historys example shows that the Right to be Forgotten will be abused.
Subpoint A:
The Right to be forgotten has been used fordespicable purposes, like covering up
corporate racism, hiding lies in professional sports, and concealing malignant bankers
from the public eye.
Washington Post, (2014). Pianist asks The Washington Post to remove a concert review under the E.U.s
right to be forgotten ruling. [online] Available at: http://www.washingtonpost.com/news/theintersect/wp/2014/10/31/pianist-asks-the-washington-post-to-remove-a-concert-review-under-the-e-u-s-right-to-beforgotten-ruling/ [Accessed 2 Nov. 2014].

Accordingly, in the three months after the right to be forgotten ruling went into effect,
Google approved 53 percent of take-down requests on first application, and an
additional 15 percent upon further review.
Those removals included articles from the Guardian about a former Scottish soccer
referee who lied about granting a penalty kick, a BBC article that discussed a Merrill
Lynch bankers role in the financial crisis, and a report in the Daily Mail about an airline
that had been accused of racism by a Muslim job applicant. And they proceeded despite
the fact that, as Google complained in a filing to regulators, in many cases we lack the
larger factual context for a request, without which it is difficult to balance competing
interests.
Subpoint B:
Furthermore, by concealing criminal trials, the Right to be Forgotten has attacked public
interest rather than protect it.

Dave Lee, Oct. 17, 2014, BBC to Publish 'forgotten' Page List." BBC News. N.p., n.d. Web. 03 Nov. 2014,
http://www.bbc.com/news/technology-29658085

Mr Jordan said the BBC had so far been notified of 46 links to articles that had been
removed. They included a link to a blog post by Economics Editor Robert Peston. The
request was believed to have been made by a person who had left a comment
underneath the article. An EU spokesman later said the removal was "not a good
judgement" by Google.The list will not republish the story, or any identifying information.
It will instead be a "resource for those interested in the debate", Mr Jordan said. He
criticised the "lack of a formal appeal process" after links have been taken down, noting
one case where news of the trial involving members of the Real IRA was removed from
search results. "Two of whom were subsequently convicted," Mr Jordan explained. "This
report could not be traced when looking for any of the defendants' names. It seems to
us to be difficult to justify this in the public's interest."
In conclusion, the Judge should prefer a rule that makes freedom of speech an absolute
right. Examples has proven the Right to be Forgotten to be far more than a harmless
extension of data privacy. Not only does it restrict the freedom of speech, but it has
served to hide vital flaws from the public eye. For these reasons, a negative ballot is
justified.