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The Right to be Forgotten

by David M. Reutter

Success in having a court record expunged may shroud it from public records disclosure, but where one lives determines if there is a right to be forgotten. Some states have automatic expungement laws, but the right to be forgotten by the media is another matter entirely.

About 70 million U.S. adults have a criminal record, including those who have arrests but no conviction. According to Pew Trusts, as of April 2021, at least 11 states have automatic expungement laws. While those laws make records in a case non-existent for public records requests, nothing stops the media from reporting the existence of an expunged arrest or conviction.

Before the digital age, parsing newspapers for information required digging through stacks of microfiche of archived publications. With the advent of the internet, that information is available at the click of a mouse. So while court records are not available, the media record still exists.

That leaves persons who desire to have their expunged misdeeds forgotten to the mercy of newspaper boards to consider a request for a clean start. “This creates a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information,” wrote Brian M. Murray, an associate professor at the Seton Hall University School of Law, in an article titled “Newspaper Expungement,” which appeared in the Northwestern University Law Review Online.

According to Murray, the private sector’s reluctance to expunge criminal records derives from the First Amendment’s “enshrined norms related to free speech and access to official information.” He notes that the American public has a “generalized skepticism of governmental authority and a thirst for criminal justice transparency throughout history.”

The United States lags behind the European Union (“EU”) in the drive to provide people with a clean slate. The EU has enacted the general Data Protection Regulation, which is known as the “right to erasure.” It gives EU citizens the power to demand that data about them be deleted.

In 2015, France’s top regulator, the CNIL, ordered Google to globally remove search results listing pages containing damaging or false information about a person. Google introduced a geoblocking feature that prevents European users from seeing delisted links. The CNIL fined Google $109,901 because it resisted censoring searches for people in other parts of the world.

“Currently, there is no obligation under EU law, for a search engine operator who grants a request for de-referencing made by a data subject . . . to carry out such a de-referencing on all versions of its search engine,” the European Court of Justice ruled.

The right to be forgotten is gaining traction, but much more needs to be done for expungement orders or laws to have a real impact to achieve a clean slate.  


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