Is the Right to Be Forgotten Among Our Unalienable Rights?

We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness.”
-Declaration of Independence, July 4, 1776

forgottenIn May 2014, the European Court of Justice (ECJ) held that Europeans’ fundamental right to privacy encompasses the “right to be forgotten.” Google Spain SL et al. v. AEPD et al., No. C-131/12 (May 13, 2014). The repercussions of the decision have been, and continue to be, phenomenal. Europeans are overwhelming Google with takedown requests; First Amendment scholars on this side of the pond debate fiercely whether the United States should recognize a similar right; and media lawyers grapple with how best to advise their clients when someone seeks to have outdated or embarrassing content removed from the Internet. Indeed, earlier this month, France’s Commission Nationale de l’Informatique et des Libertés (CNIL) ordered Google to apply the ‘right to be forgotten’ takedown requests to all of Google’s domain names, including As the volume of personal information online abounds, and the ease with which we can access the information from a variety of sources intensifies, the issue of whether the U.S. should recognize a right to be forgotten will persist. But, where should the U.S. land on the issue?

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Posted by Erin Rhinehart
Advertising and Media
June 19, 2015

SCOTUS Side-Steps First Amendment Issue in Long-Awaited Elonis Case

threat2Intent matters. On June 1, 2015, the United States Supreme Court reversed the Third Circuit’s decision and held that online comments cannot be considered a threat absent the requisite intent of the speaker. Elonis v. U.S., Slip Opinion No. 13-983, 575 U.S. ___ (2015).   As explained in an earlier article, Elonis would have been the first case to evaluate whether violent images and threatening language in the form of rap lyrics constitute a “true threat” to others, or are protected speech under the First Amendment. The Court, however, disappointed many by finding it “unnecessary to consider any First Amendment issues.” Instead, the Court found that, pursuant to 18 U.S.C. §875(c), “‘what [Elonis] thinks’ does matter.”

Anthony Elonis – a/k/a Tone Dougie – was sentenced to forty-four months in federal prison for posting sadistic rants on his Facebook page against his estranged wife, co-workers and others. He often posted disclaimers that the posts were fictitious rap lyrics, and that he used his writing as a form of therapy to work through the pain of his personal problems. His estranged wife, on the other hand, disagreed and said that she feared for her safety and the safety of their children.

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Posted by Erin Rhinehart
Advertising and Media
June 5, 2015


privacy2The May 2, 2015 boxing match between Floyd Mayweather and Manny Pacquiao was billed as the “Fight of the Century.”[1] It broke many records, including the record for pay-per-view viewership in the United States with 4.4 million purchases and over $410 million in pay-per-view revenue.[2] The cost to order the fight on television was $89.95, plus an additional $10 for high definition.[3] Given that steep price and the high level of interest in the bout, the “Fight of the Century” may also have broken the record for most pirated live sporting event ever.

Federal law prohibits the unauthorized publication, use, interception, or reception of certain televised events, through the Communications Act of 1934 (47 U.S.C. § 605, et seq.) (“Communications Act”) and the Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553, et seq.) (“Cable Act”). Both statutes allow for a private right of action, i.e., any person harmed by a violation may bring a lawsuit to enforce the statute, not only the government.[4]

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Posted by Michael Mayer
Advertising and Media, Business Litigation
May 28, 2015

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