The Permanence of Electronic Postings vs. the Right to Be Forgotten

By Shawn Dougherty June 23, 2014

Shawn DoughertyWe’ve all counseled our kids to be cautious of what they post on the web because it may have repercussions someday. To our kids, it must sound just like the “permanent record” that our teachers referenced when they tried to threaten us in grammar school years ago. The Internet is so fast, so immediate, so ever-changing — our kids wonder how one post, one picture, or one e-mail could live on and haunt them in the future.

If you’re looking for an example to share with your kids, you don’t have to go any further than Evan Spiegel, a recent college graduate and cofounder of Snapchat. Snapchat is a highly popular app that allows users to send messages that self-delete, providing some privacy to the content being sent. Earlier in his college career, Spiegel had sent a variety of e-mails with language insulting to women. He’s apologized for what he wrote, and he may even escape the situation unscathed. But of course, he wouldn’t have had to apologize if he hadn’t sent the e-mails — or if the content hadn’t remained on the Internet.

Last week, Facebook launched its own social communication app called Slingshot. Like Snapchat, it allows you to send photos and videos to friends. The images disappear after they’re viewed. But unlike Snapchat, you can only view a friend’s photo or video if you reply with one of your own.

I find it fascinating that many tech-savvy users are blissfully unaware of how easy it is to find posted comments, e-mails, and status updates. It’s a favorite dinner party conversation of mine and will usually involve a few simple Google searches to prove the point.

Many people rely on privacy services such as Snapchat to delete comments or e-mails and to control the existence of online content. But last month, ABC News ran an interesting story about what really happens to that content and how others can easily capture it. That story came after Snapchat decided to settle with the Federal Trade Commission, which had accused the company of lying to customers about the privacy of its service. Privacy is also a concern on Slingshot because the app apparently doesn’t alert users if someone has taken a screenshot of your photo or video and saved it on a mobile device.

Europe has been a leader in protecting online privacy. Last month, Europe’s highest court ruled that Google had to delete links to a legal notice from the 1990s that mentioned a Spanish citizen’s need to sell his home to pay off debts. The citizen was concerned about his reputation online, and the ruling affirmed what many are calling “the right to be forgotten.” Since the ruling, Google has created a web form that Europeans can use to request removal of links appearing in search results that may violate their privacy. According to a blog post in The New York Times, Google has received more than 50,000 requests so far and plans to start removing links by the end of June

While the “right to be forgotten” movement may spread around the world, it’s still a much better strategy simply to avoid posting anything online that could damage your reputation. Your rule of thumb should be: If you wouldn’t say something in front of your mother, you shouldn’t say it online.

If you have any questions about cyber risk or cyber insurance, please feel free to e-mail me at sdougherty@iso.com. You can also follow me on Twitter @doughertyshawn.


Shawn Dougherty

Shawn Dougherty is the assistant vice president of ISO's Specialty Commercial Lines Division. He is responsible for providing the overall direction, leadership, and client service for ISO's cyber liability (e-commerce), D&O (management protection), businessowners, crime and fidelity, financial institutions, employment-related practices liability, and professional liability (other than medical) insurance programs. He is also the ISO product manager for the Lloyd's Wordings Repository, an electronic database of policy wordings and clauses regularly used within the London market. Mr. Dougherty has worked at ISO since 1988.