NY Bill Aims to Censor Internet Under Broad Interpretation of Merit; "Inaccurate" “Irrelevant" "Inadequate" "Excessive" Shall Be Removed

New York State Assemblyman David Weprin (D-Hollis) and State Senator Tony Avella (D-Queens) have proposed legislation – Senate Bill 4561 – that is known colloquially as the "Right to be Forgotten Act." What the bill ...

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New York State Assemblyman David Weprin (D-Hollis) and State Senator Tony Avella (D-Queens) have proposed legislation – Senate Bill 4561 – that is known colloquially as the "Right to be Forgotten Act." What the bill entails, is the right of an individual, upon request, to compel websites and search engines to expunge allegedly false or libelous information.

Photo by: geralt

Albany, NY - March 21, 2017 - The Internet can be an amazing source of information and communication, but in the wrong hands, it can also be a vast source of misinformation and injury as well. False information about an individual or group, when unchecked, can spread like digital wildfire, and two lawmakers have recently announced their intent to do something about it…although some fear they may be going a bit too far in the process.

New York State Assemblyman David Weprin (D-Hollis) and State Senator Tony Avella (D-Queens) have proposed legislation – Senate Bill 4561 – that is known colloquially as the "Right to be Forgotten Act." What the bill entails, is the right of an individual, upon request, to compel websites and search engines to expunge allegedly false or libelous information.

While the bill certainly has its merits in that regard – the Internet in recent years has become the equivalent of a playground at recess where anyone can talk trash about without any apparent regard or repercussions –  some are taking Weprin and Avella to task for how the Right to be Forgotten Act is worded; some of the descriptive terms used to denote material deemed to fall under the bill’s scope are “inaccurate,” “irrelevant,” “inadequate” or “excessive” statements about others, which could fall into a very grey area in regards to the constitutional right of free speech.

According to the Washington Post, Senate Bill 4561 would work as follows:

  • Within 30 days of a ”request from an individual,”
  • “all search engines and online speakers] shall remove … content about such individual, and links or indexes to any of the same, that is ‘inaccurate’, ‘irrelevant’, ‘inadequate’ or ‘excessive,’ ”
  • “and without replacing such removed … content with any disclaimer [or] takedown notice.”
  • “ ‘[I]naccurate’, ‘irrelevant’, ‘inadequate’, or ‘excessive’ shall mean content,”
  • “which after a significant lapse in time from its first publication,”
  • “is no longer material to current public debate or discourse,”
  • “especially when considered in light of the financial, reputational and/or demonstrable other harm that the information … is causing to the requester’s professional, financial, reputational or other interest,”
  • “with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester’s role with regard to the matter is central and substantial.”

Non-compliance with a request issued in accordance with the Right to be Forgotten Act, if passed by House and Senate vote, could potentially be huge; $250 per day that the offending information remains on-line – after a 30-day grace period – in addition to any applicable attorney fees. If a search engine or 'speaker of information' drags their feet for over a month or more, it can literally cost them thousands of dollars before they know it.

As for the reasoning behind the introduction of this particular bill, Weprin and Avella noted that the labyrinthine – and quite permanent – nature of the internet has forced the court system to play a never-ending game of catch-up.

“Currently, the statue of limitations provides that a person may sue within one year of being defamed by a publisher,” the bill says. “While this was sufficient when publishing was limited to television and news print, today’s online publications can resurface in perpetuity in search engines.”

“We’re looking to deal with situations regarding average people who are not public figures, and there’s information out there that's damaging to their reputation,” Weprin himself was quoted as saying in a recent report.

While some applaud the spirit behind the proposed bill and the ability it would give those unjustly or unfairly slandered to more easily right the wrongs done to them, others are decrying its alleged Orwellian elements and are calling it an attempt to infringe upon the free and open exchange of ideas that the internet is known for.

According to Washington Post legal expert Eugene Volokh, the Right to Be Forgotten Act contains very indistinct verbiage that would give the government immense leeway when determining if an offending body of text on the internet is “no longer material to current public debate or discourse,” claiming that even copies of books and online encyclopedias would be subject to the decisions of a judge and jury enforcing the Act, even if said material had legitimate historical value.

“But the deeper problem with the bill is simply that it aims to censor what people say, under a broad, vague test based on what the government thinks the public should or shouldn’t be discussing. It is clearly unconstitutional under current First Amendment law, and I hope First Amendment law will stay that way,” Volokh said. “This is not about libel or slander, for which there are already avenues of legal redress should someone falsely malign another. This is about a much, much broader subject: the ability to speak freely, all the way from news reports to reviews and non-fiction essays. And, not surprisingly, it is a particularly powerful weapon for the politicians and the bureaucrats they appoint.”

However, as previously stated above, a prominent exception to proposed powers of the Act would be that crimes proven in a court of law would b granted immunity from removal; in other words, for example, a convicted felon would not be able to demand that a online newspaper remove an article that mentions them within a context of a crime they have committed.

It should be noted that those who feel they have been maligned via text on the internet do indeed have legal avenues available to them separate from those promised by the Right to Be Forgotten Act – currently in its first draft, and still a ways off from any kind of a vote – should it eventually pass in the House and Senate. And over time, the wording of the bill will no doubt evolve as Assemblyman Weprin and Senator Avella take into consideration the voices of their constituents on the matter.

That being said, how do you feel about this issue? Do you feel that the laws currently in place governing speech on the internet – which, if misused, can cause very real damage to lives and reputations – are fair and effective, or do they need to be tightened? And if so, how far can things go before the concept of free speech is conflicted with?