Jon Favreau's "Chef" And The Right To Be Forgotten

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There's a moment about 40 minutes into the movie  Chef that perfectly encapsulates our tortured relationship with privacy in the internet age.

Carl Casper, the executive chef of a posh Brentwood bistro is savaged by food critic Ramsey Michel in his latest review. Carl (played by the film's writer and director, Jon Favreau of Swingers and Iron Man fame) loses control and against the advice of his friends, starts a Twitter feud with Michel, resulting in a public meltdown with Carl screaming at Michel in front of a hundred shocked onlookers. Unfortunately for Carl, the meltdown is caught on video and goes viral. Carl loses his job and starts a downward spiral. At one point, Carl, unfamiliar with the general workings of the internet, asks his ex-wife's publicist to take the video down from the  TMZ-like site that's hosting it. He's incredulous when told "you can't." How can you not take something down from the internet? His publicist tells him that for every site she can convince to remove the video, it’ll just pop up again elsewhere. The fight to take the video offline will just create more demand to see it. Her advice: either lean into the bad press and take a spot on Hell’s Kitchen or go underground until the insatiable churning maw of the web finds another victim.

What the film gets right is that once something is out there, it's out there, and there are very few mechanisms in the law that can tamp down the inevitable backlash. Even mechanisms that do work, like copyright law, are pretty limited in scope. If Carl had owned the video, he could have submitted DMCA takedown notices to the websites hosting it. But even that would require an unreasonable amount of vigilance (DMCA notices don't work as a blanket removal. You have to individually specify each site that is unlawfully hosting the video). In this case, Carl simply has no recourse; he didn't make the video, he was merely its unwitting star. And in this country, there's no law I'm aware of that allows you to remove unflattering content from the web simply because you accidentally defamed yourself.

In essence, Carl is fighting for the right to be forgotten, or more accurately, the right to have specific embarrassing moments forgotten, which is just another way of saying he wants his indiscretions private. And as I've mentioned before, the right of privacy in this country exists in a sort of weird limbo; the laws pay lip service to it (it doesn't exist as a standalone right. Rather it is derived from a combination of the first, third, fourth, fifth, ninth, and fourteenth amendments), and the American people prize it, but it's consistently under attack by corporations and the government when they deem that access to you - for the purposes of homeland security and/or profit - is necessary.

The reality is that this will probably never change. In America, free speech trumps privacy, which is why TMZ's right to show an embarrassing video of Carl usually supersedes Carl's right to not have the video be seen. The Europeans, unsurprisingly, have taken a different approach. This past spring, the Court of Justice - their Supreme Court - ruled that individuals had the right to prohibit Google from linking to items that are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.” That is, embarrassing items that have no quantifiable public benefit.

Google has already started complying, removing old links to potentially embarrassing material, so this ruling probably comes as good news if you live in Italy and your friends tend to post unflattering photos of you on drunken binges. But if you're living in the U.S., you're not sitting so pretty. After all, according to Mark Zuckerberg, privacy is no longer a social norm. But that's not entirely true, is it? People here are just as fanatical about their privacy as they are in Europe. Hence passwords on our emails, locks on our doors, shades on our windows, and multi-factor authentication on our online accounts. There's a reason everyone was incensed over the NSA surveillance scandal, beyond the question of whether Snowden is a traitor or a hero (he's neither).

Glenn Greenwald recently gave an incredible Ted Talk on the issue of privacy and according to him, privacy in the internet age doesn't just matter, it's a fundamental requirement for human beings. His central conceit is that "essential to what it means to be a free and fulfilled human being is to have a place that we can go and be free of the judgmental eyes of other people... all of us, not just terrorists and criminals... all of us have things to hide" (maybe you like picking your nose, but that doesn't mean you want anyone to see it). When it comes to privacy, I consider Greenwald, above all else, an expert on the issue. And while he is mainly talking about the issue of mass surveillance, his point is equally salient when it comes to unflattering content on the web.

Carl Casper wants to hide his outburst from the public. He wants people to forget about it, to not judge him by it and have his reputation inextricably linked to it. I suppose you could argue that because Carl's outburst - and the subsequent recording of it - was done in a public space, he's not entitled to privacy. But I think that misses the point. The point is he did something that he later regrets and doesn't want to be defined by it for the rest of his life. I think that's a reasonable wish and it's exactly the kind of thing the European ruling is trying to remedy. As Greenwald says, "human shame is a very powerful motivator, as is the desire to avoid it." He concludes that constantly being watched, that having our privacy constantly under fire actually results in less freedom. So maybe those socialists in Europe are onto something after all.

Or are they?

The other day, a pianist named Dejan Lazic submitted a request to the Washington Post under the European Court ruling asking the paper to remove a middling review written in 2010 by their classical music critic Anne, Midgette. Now I seriously doubt Lazic's request meets the requirements for removal under the European Court ruling considering how recent it is and the fact that the review is hardly defamatory. And it's also unclear to me whether the ruling would affect U.S. publications like the Washington Post. But this kind of activity just goes to show how easily abused something like this can become. We SHOULD have the right to be forgotten, but how far does that extend? If you're a public figure like Lazic, does that also mean you have the right to control everything that's said about you?

This issue is far from resolved and I think will require a great deal of thought by our elected officials to find the right balance...

...maybe in the next Congress.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA