Privacy, Publicity, and the Right to Be Forgotten

This paper takes up the question of what kinds of claims we have against information being dug up from our past. Specifically, it focusses on information that is legitimately a matter of public record. When some information has been stored in an archive and has, in principle, been accessible to anyone, what claims, if any, do we have against that information being brought back to light? The data protection provisions colloquially referred to as the right to be forgotten function to prevent information which is already accessible in some archives being made more accessible through search engine results. Such data protection provisions are typically framed as privacy protections. While some have argued that we can have privacy rights over information that has been made public, I argue that appeals to privacy fail in cases concerning information that is legitimately a matter of public record. Paying attention to the reasons we have to object to the dredging up of outdated information reveals a new category of claims, which I call claims against distortion. We can understand such claims as falling under a more general principle of reputational control embedded in the historic right of personality. This provides the basis for claims to privacy, claims against defamation, and, as I will argue, claims against distortion. Understanding the role of claims against distortion expands our toolkit for analysing and justifying data protection provisions. In doing so, it widens the scope of debates about when and why we have reason to give individuals more control over their personal information.