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ANA to FTC: Put a stake in the heart of ‘right to be forgotten’

The Association of National Advertisers is invoking the First Amendment in the brewing debate over the right to be forgotten, a European privacy policy that some privacy advocates and foreign countries would like to see imported to the U.S.

Writing to the Federal Trade Commission Friday, the ANA urged the commission to dismiss a complaint filed earlier this month by Consumer Watchdog. The consumer group alleged that Google’s refusal to honor the right to be forgotten is unfair and deceptive, a violation of the FTC Act.

The right to be forgotten, established by a European Union court in May 2014, allows Europeans to ask search engines to delist links to information that is deemed inadequate, irrelevant, no longer relevant, and not in the public interest.

“It’s important for the Federal Trade Commission uphold the First Amendment rights in the U.S.,” said Dan Jaffe, executive vice president of the Association of National Advertisers. “We see this as the opening edge of a long-range debate that is going to take place.”

In addition to privacy groups, foreign government are also pressing Google to apply the concept within U.S. borders.

Google Thursday formally rejected a request from CNIL, France’s data protection regulator, to delist links not just from European versions of search, but from all versions globally.

“While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others: Thailand criminalizes some speech that is critical of its King, Turkey criminalizes some speech that is critical of Ataturk, and Russia outlaws some speech that is deemed to be ‘gay propaganda’,” Peter Fleischer, Google’s privacy counsel wrote in a blog post.

The ANA wants the FTC, the de-facto privacy agency, to squelch the whole idea of a U.S. right to be forgotten. In its letter to the FTC, the ANA details First Amendment case law, calling Consumer Watchdog’s complaint “legally baseless” and “misguided” and the right to be forgotten “plainly unconstitutional.”

“If the right to be forgotten were applied to the U.S., it would not only affect Google, but could create broad precedent adversely affecting other U.S. companies,” Jaffe wrote. “Allowing the right to be forgotten in the U.S. would cause serious and undue harm to the public’s right to determine for itself what is important and relevant information. It would force search companies to edit the past under the supervision of federal regulators,” Jaffe wrote.

The ANA also argues that contrary to Consumer Watchdog’s assertion, the right to be forgotten has nothing to do with Section 5, which allows the FTC police “unfair and deceptive” business practices such as a company fails to uphold its own privacy policies, the ANA argued.

“Consumer Watchdog is not asking Google to cut links to false, deceptive, or defamatory information, but to information that is likely accurate but potentially ‘embarassing.’…. CW, however, is conflating the right to privacy with the right not to be embarrassed,” Jaffe wrote.