The path of resistance: An explanation of the American resistance to the European Right to be Forgotten through a path dependence analysis

The European recognition of a Right to be Forgotten and the legal debate surrounding it has exposed fundamental differences between the protection of personal privacy in the United States and Europe. The international character of the World Wide Web and the Internet elevates this debate to more than an academic discussion: it has important consequences for American-European relations when it comes to international trade, protection of intellectual property rights, and even national security. In my research I ask if a path dependence analysis can shed a new light on the American rejection of the inclusion of the European Right to be Forgotten into privacy law. I use the distinction between the "liberty" conception of privacy and the "dignity" conception of privacy that has been identified by previous authors. With developments in privacy law in several European jurisdictions as a contrast, I trace the American development of privacy protection and I identify the critical junctions and reinforcing mechanisms that put it at odds with the Right to be Forgotten. My analysis shows that the American "liberty" conception of privacy does not allow for accepting the European Right to be Forgotten into the American legal framework, because the United States uses a different system for protecting privacy of individuals. Under this framework, the right to privacy is clearly fenced off from other rights, whereas in Europe, several rights may collide and a balancing test between these individual rights will be employed. The Right to be Forgotten was born in the context of this balancing test. My path dependence analysis shows that the American "liberty" conception of privacy rights leaves no room for a balance against other individual rights and thus no room for the Right to be Forgotten. My prediction is, however, that a different, more restricted version of the Right to be Forgotten will find its way into the American legal system at some point.