Wow, Europe just doesn’t buy the American idea that free speech online is sacrosanct. Earlier this month, the European Court of Justice ruled in favor of a “right to be forgotten,” requiring Google to remove links to old and embarrassing articles about debts a Spanish lawyer had long since paid. And now a German court has come down on the side of a woman who wants her ex-boyfriend to delete nude pictures and erotic videos of her from his computer. This kind of claim would never fly in the United States—the First Amendment would trample it. That’s exactly why I’m glad Europe is building a different sort of online universe. Will it prove better or worse to strike a different balance between the competing values of preventing reputational harm and protecting free speech? I look forward to finding out.
The woman in the German case said she consented at the time the nude images and videos were taken. But now she wants her photographer ex to wipe the images from his computer. (He had not posted them online—atypical for this kind of case.) The photographer refused. The ruling in her favor is based on Germany’s constitution, which provides for “the inviolability of human dignity,” stating that “every person shall have the right to free development of his personality” so long as he doesn’t violate other people’s rights along the way.
As this post in the Guardian explains:
The court interpreted the personality right to include an “intimate sphere” subject to protection. The protection afforded to the intimate sphere was more important than any copyright protection or rights afforded to the ex-lover photographer. The items ordered for deletion were done in the photographer’s personal capacity and not as part of his business. Article 12 of the German Constitution protects occupational freedom and photos or videos done in connection with the defendant’s business might have made the decision more difficult if the court was forced to decide which constitutional protection was more important.
There is no right to dignity in the U.S. Constitution, much less the freedom to control the development of one’s personality, or brand. You can sue someone for slander, or the publication of private facts, if defamatory posts go up about you online. But those cases are hard to win (and sometimes even to find out the identity of the poster, if he or she acts anonymously). It is also hard to get any kind of relief if someone has nude images of you even if they took them without your consent. A few states have tried to address the problem of revenge porn, but this is only an initial effort. And it confronts an entrenched American tradition of treating the right to free speech as absolute. We do cherish our First Amendment.
What if the European experiment shows little speech of value to be lost—and a lot of relief from humiliation and invasion of privacy gained? Would we ever rethink our approach in the U.S.? Cases like this one in Germany raise the questions.
