Responding to a petition filed by Consumer Watchdog with the Federal Trade Commission seeking an expansion of the “Right to Be Forgotten” to the United States, the Association of National Advertisers asked the Commission to reject the request.
In a letter to the FTC authored by executive vice president Daniel L. Jaffe, the ANA warned that recognition of the RTBF “would cause serious and undue harm to the public’s right to determine for itself what is important and relevant information.”
Last year the highest court in the European Union recognized the RTBF, and ordered Google to remove links to stories about a Spanish man’s financial history. Consumer Watchdog recently filed a petition seeking to extend the right to the United States. It argued that Google, in denying the same protection in the U.S., engaged in an unfair and deceptive practice in violation of Section 5 of the Federal Trade Commission Act, and acted deceptively because the company claims to respect user privacy rights but doesn’t allow removal requests.
ANA responded, calling the argument “legally baseless.” The rationale underlying Consumer Watchdog’s petition is “sweeping in nature” and would apply to companies beyond Google and impose new legal obligations, Jaffe wrote. “The FTC has held companies accountable under the law when they promise certain specific privacy practices but then fail to adhere to them,” according to the ANA letter. “But there is no precedent for compelling companies to import expansive privacy policies that are not already part of their terms of service. The fact that a company generally has privacy protections does not provide carte blanche to impose regulations on [Consumer Watchdog’s] wish list. This has nothing to do with Section 5.”
Privacy law in Europe differs greatly from the American approach, the ANA explained, and the U.S. provides far more robust and stringent free speech protections. “Put simply, certain regulations acceptable under European law would be plainly unconstitutional if applied in the United States,” the letter stated. “The so-called ‘Right to Be Forgotten’ is one such policy.”
In addition to constitutional concerns, the ANA highlighted practical considerations. In just one year since the EU recognized the RTBF, Google has received 274,462 removal requests and evaluated 997,008 URLs for removal from its search results—figures that “clearly show that expanding this type of program to the United States would be time-consuming, expensive, burdensome, and difficult for Google or any other company tasked with this requirement,” the ANA wrote.
The free exchange of information online provides immense benefits, the ANA emphasized. Instead of conflating the right to privacy with the right not to be embarrassed by “youthful indiscretions,” as advocated by Consumer Watchdog, the FTC should focus on the “democratization of information,” one of the hallmarks of the Internet. “Imposing the Right to Be Forgotten would impede information access in the United States; it would be anti-consumer, not pro-consumer,” the ANA argued.
“Allowing the Right to Be Forgotten in the United States would cause serious and undue harm to the public’s right to determine for itself what is important and relevant information,” the group concluded. “It would force search companies to edit the past under the supervision of federal regulators. This runs contrary to consumers’ interests. As protecting consumers is a core responsibility of the FTC’s mission, ANA therefore requests that the Commission quickly and forcefully reject [Consumer Watchdog’s] misguided complaint.”
To read the ANA’s letter to the FTC, click here.
Why it Matters: How the FTC deals with the RTBF petition remains to be seen. But the issue arose in a different context when a French authority ordered Google to remove all the links from its search pages—including Google.com in the United States—and not just the European pages. Despite the threat of a $340,000 fine, Google refused to comply. “We believe that no one country should have the authority to control what content someone in a second country can access,” Google’s global privacy counsel Peter Fleischer wrote on the company’s blog. Google appealed the order, calling it “a troubling development that risks serious chilling effects on the Web,” that would result in “a race to the bottom. In the end, the Internet would only be as free as the world’s least free place.”