Right to be forgotten

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The right to be forgotten is a concept that has been discussed and put into practice in the European Union (EU) and in Argentina since 2006.[1][2] The issue has arisen from the desires of some individuals to "determine the development of his life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past."[3]:231 There has been considerable controversy about the practicality of establishing a right to be forgotten to the status of an international human right in respect to access to information, due in part to the vagueness of current rulings attempting to implement such a right.[4] There are concerns about its impact on the right to freedom of expression, its interaction with the right to privacy, and whether creating a right to be forgotten would decrease the quality of the Internet through censorship and a rewriting of history,[5] and opposing concerns about problems such as revenge porn sites appearing in Google search listings for a person's name, or references to petty crimes committed many years ago indefinitely remaining an unduly prominent part of a person's Google footprint.[6]

It is a misconception that Google did not allow the deletion of links before. As of 21 August 2014, Google has received over 30 million deletion requests, mostly due to copyright violations and the Digital Millennium Copyright Act.[7] In the first few days after the ruling, thousands of Europeans asked Google to take down links, with approximately half pertaining to criminal convictions.[8] Within 24 hours of the request form becoming digital, Google received more than 12,000 requests for removal.[9] There were over 70,000 requests in less than 8 weeks. But also due to privacy violations, content has been removed before the "right to be forgotten" due to court orders and policy requests, often because of defamation and privacy.[10]

Conception and history[edit]

In 1995 the European Union adopted the European Data Protection Directive (Directive 95/46EC) to regulate the processing of personal data.[11] This is now considered a component of human rights law.[12] The right to be forgotten has been contested in the courts of Argentina and the United States of America, both of which recognized the validity of such a right. It was also recognized in French Law in 2010.[13][14] It has not as of yet been accepted as a universal human right; however, the new European Proposal for General Data Protection Regulation applies to international companies who are active in the EU, and penalties can be applied to them for their actions in the EU, making this directive of global importance.[15]

Current legal frameworks[edit]

The right to be forgotten "reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them."[16]:121 It has been defined as "the right to silence on past events in life that are no longer occurring."[17] The right to be forgotten leads to allowing individuals to have information, videos or photographs about themselves deleted from certain internet records so that they cannot be found by search engines.[16] As of 2014 there are few protections against the harm that incidents such as revenge porn sharing, or pictures uploaded due to poor judgement, can do.[18]

The right to be forgotten is distinct from the right to privacy, due to the distinction that the right to privacy constitutes information that is not publicly known, whereas the right to be forgotten involves removing information that was publicly known at a certain time and not allowing third parties to access the information.[16]:122[19] Limitations of application in a jurisdiction include the inability to require removal of information held by companies outside the jurisdiction. There is no global framework to allow individuals control over their online image.

Recognition[edit]

European Union[edit]

In Article 12 of the Directive 95/46/EC the EU gave a legal base to internet protection for individuals.[3]:233 In 2012 the European Commission disclosed a draft European Data Protection Regulation to supersede the directive, which includes specific protection in the right to be forgotten in Article 17.[20]

In May 2014, the European Court of Justice ruled against Google in Costeja, a case brought by a Spanish man, Mario Costeja González, who requested the removal of a link to a digitized 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid.[21] He initially attempted to have the article removed by complaining to the Spanish Data Protection Agency, which rejected the claim on the grounds that it was lawful and accurate, but accepted a complaint against Google and asked Google to remove the results.[22] Google sued in the Spanish Audiencia Nacional (National High Court) which referred a series of questions to the European Court of Justice.[23] The court ruled in Costeja that search engines are responsible for the content they point to and thus, Google was required to comply with EU data privacy laws.[24][25][26] On its first day of compliance only (May 30, 2014), Google received 12,000 requests to have personal details removed from its search engine.[27]

In July 2014, in the early stages of Google's effort to comply with the court ruling, legal experts questioned whether Google's widely publicised delistings of a number of news articles violated the UK and EU Data Protection Directive, since in implementing the Directive, Google is required to weigh the damage to the person making the request against any public interest in the information being available.[28] Google indeed acknowledged that some of its search result removals, affecting articles that were of public interest, were incorrect, and reinstated the links a week later.[6][29] Commentators like Charles Arthur, technology editor of The Guardian, and Andrew Orlowski of The Register noted that Google is not required to comply with removal requests at all, as it can refer requests to the information commissioner in the relevant country for a decision weighing the respective merits of public interest and individual rights.[6][28][30] It is important to note, that currently, requests made by private persons under the EU ruling for information removal are just implemented by Google on European sub domains, such as Google.co.uk or Google.fr but not on Google.com. That’s not about to change, according to Eric Schmidt unless Google is compelled to escalate de-indexing to .com by the ECJ in the future.[31]

Germany[edit]

On October 27, 2009, lawyers for Wolfgang Werlé who was convicted for murdering Walter Sedlmayr sent the Wikimedia Foundation a cease and desist letter requesting that Werlé's name be removed from the English language Wikipedia article Walter Sedlmayr, citing a 1973 Federal Constitutional Court decision that allows the suppression of a criminal's name in news accounts once he is released from custody.[32][33][34] Previously, the attorney for both men, Alexander H. Stopp, had won a default judgment in German court, on behalf of Lauber, against the Wikimedia Foundation.[32] According to the Electronic Frontier Foundation, Werlé's lawyers also challenged an Internet service provider in Austria which published the names of the convicted killers.[35]

Wikimedia is based in the United States, where the First Amendment to the United States Constitution protects freedom of speech and freedom of the press, under which the articles on Wikipedia would fall.[citation needed] In Germany, the law seeks to protect the name and likenesses of private persons from unwanted publicity.[36] On January 18, 2008, a court in Hamburg supported the personality rights of Werlé, which under German law includes removing his name from archive coverage of the case.[37]

On November 12, 2009, The New York Times reported that Wolfgang Werlé has a case pending against the Wikimedia Foundation in a German court. The editors of the German-language Wikipedia article about Sedlmayr removed the names of the murderers,[32] which have since then been restored to the article. The Guardian observed that the lawsuit has led to the Streisand effect, an upsurge in publicity for the case resulting from the legal action.[38]

On December 15, 2009, the German Federal Court of Justice (Bundesgerichtshof) in Karlsruhe ruled that German websites do not have to check their archives in order to provide permanent protection of personality rights for convicted criminals. The case occurred after the names of the brothers were found on the website of Deutschlandradio, in an archive article dating from July 2000.[39] The presiding judge Gregor Galke stated "This is not a blank check", and pointed out that the right to rehabilitation of offenders had been taken into consideration.[40][41]

Argentina[edit]

Argentina has seen law suits by celebrities against Google and Yahoo! in which the plaintiffs demand the removal of certain search results, and require removal of links to photographs.[42] One case, brought by Virginia de Cunha, involved photographs which had originally been taken with her permission and uploaded with her permission, however she alleged that the search results improperly associated her photographs with pornography.[43] De Cunha's case achieved initial success resulting in Argentine search engines not showing images of the particular celebrity, however this decision is on appeal.[44]

United States of America[edit]

Consideration of the right to be forgotten can be seen in case law, specifically in Melvin v. Reid, and in Sidis v. FR Publishing Corp.[45]

In Melvin v. Reid, an ex-prostitute was charged with murder and then acquitted; she subsequently tried to assume a quiet and anonymous place in society. However, the 1925 film The Red Kimona revealed her history, and she sued the producer.[46][47] The court reasoned that "any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation."[48]

However, in Sidis v. FR Publishing Corp. the plaintiff, William James Sidis, was a former child prodigy who wished to spend his adult life quietly, without recognition; however, this was disrupted by an article in The New Yorker.[49] The court held here that there were limits to the right to control one's life and facts about oneself, and held that there is social value in published facts, and that a person cannot ignore their celebrity status merely because they want to.[49]

There is opposition to further recognition of the right to be forgotten in the United States as commentators argue that it will contravene the right to freedom of speech and freedom of expression, or will constitute censorship, thus potentially breaching peoples constitutionally protected right to freedom of expression in the United States Constitution.[50] These criticisms are consistent with the proposal that the only information that can be removed by user's request is content that they themselves uploaded.[50][51]

In a June 2014 opinion piece in Forbes, columnist Joseph Steinberg noted that "many privacy protections that Americans believe that they enjoy – even some guaranteed by law – have, in fact, been eroded or even obliterated by technological advances." Steinberg – in explaining the need for legislation guaranteeing the "Right to be Forgotten" – noted that existing laws that require adverse information to be removed from credit reports after a period of time, and that allow the sealing or expunging of criminals records, are effectively undermined by the ability of prospective lenders or employers to forever find the removed information in a matter of seconds by doing a Google search.[52]

European Data Protection Regulation[edit]

The 2012 draft European Data Protection Regulation Article 17 details the "right to be forgotten and to erasure".[53] Under Article 17 individuals to whom the data appertains are granted the right to "obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child or where the data is no longer necessary for the purpose it was collected for, the subject withdraws consent, the storage period has expired, the data subject objects to the processing of personal data or the processing of data does not comply with other regulation".[53]

The EU defines "data controllers" as "people or bodies that collect and manage personal data".[54] The EU General Data Protection Regulation requires data controllers who have been informed that an individual has requested the deletion of any links to or copies of information must "take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorized a third party publication of personal data, the controller shall be considered responsible for that publication".[53] In the situation that a data controller does not take all reasonable steps then they will be fined heavily.[55]

The European Parliament was once "expected to adopt the proposals in first reading in the April 2013 Plenary session".[56] The right to be forgotten was replaced by a more limited right to erasure in the version of the GDPR adopted by the European Parliament in March 2014.[57][58] Article 17 provides that the data subject has the right to request erasure of personal data related to him on any one of a number of grounds including non-compliance with article 6.1 (lawfulness) that includes a case (f) where the legitimate interests of the controller is overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data (see also Costeja).[59][60]

The European Union is a highly influential group of states, and this movement towards the right to be forgotten in the EU is a step towards its global recognition as a right. To support this, in 2012 the Obama Administration released a "Privacy Bill of Rights" to protect consumers online, and while this is not quite the strength of the EU law, it is a step towards recognition of the right to be forgotten.[61]

Criticism[edit]

Major criticisms stem from the idea that the right to be forgotten would restrict the right to freedom of speech.[62][63][64]

Many nations, and the United States in particular (with the First Amendment to the United States Constitution), have very strong domestic freedom of speech law, which would be challenging to reconcile with the right to be forgotten.[65] Some academics see that only a limited form of the right to be forgotten would be reconcilable with US constitutional law; the right of an individual to delete data that he or she has personally submitted.[50][51][66] In this limited form of the right individuals could not have material removed that has been uploaded by others, as demanding the removal of information could constitute censorship and a reduction in the freedom of expression in many countries.[67]

Sandra Coliver of the Open Society Justice Initiative argues that not all rights must be compatible and this conflict between the two rights is not detrimental to the survival of either.[68]

The Proposed Data Protection Regulation is written broadly and this has caused concern.[4] It has attracted criticism that its enactment would require data controlling companies to go to great lengths to identify third parties with the information and remove it.[69] The Proposed Regulation has also attracted criticism due to the fact that this could produce a censoring effect in that companies, such as Facebook or Google, will wish to not be fined under the act, and will therefore be likely to delete wholesale information rather than facing the fine, which could produce a "serious chilling effect."[69]

In addition to this, there are concerns about the requirement to take down information that others have posted about an individual; the definition of personal data in Article 4(2) includes "any information relating to" the individual.[70] This, critics have claimed, would require companies to take down any information relating to an individual, regardless of its source, which would amount to censorship, and result in the big data companies eradicating a lot of data to comply with this.[71]

There are concerns that the Proposed Data Protection Act will result in Google and other Internet search engines not producing neutral search results, but rather producing biased and patchy results, and compromising the integrity of Internet based information.[69] To balance out this criticism, the Proposed Data Protection Regulation includes an exception "for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression."[53] Article 80 upholds freedom of speech, and while not lessening obligations on data providers and social media sites, nevertheless due to the wide meaning of "journalistic purposes" allows more autonomy and reduces the amount of information that is necessary to be removed.[3]:9

Index on Censorship claimed that "Costeja ruling ... allows individuals to complain to search engines about information they do not like with no legal oversight. This is akin to marching into a library and forcing it to pulp books. Although the ruling is intended for private individuals it opens the door to anyone who wants to whitewash their personal history....The Court's decision is a retrograde move that misunderstands the role and responsibility of search engines and the wider internet. It should send chills down the spine of everyone in the European Union who believes in the crucial importance of free expression and freedom of information.[72]

When Google agreed to implement the ruling, European Commission Vice-President Viviane Reding said, "The Court also made clear that journalistic work must not be touched; it is to be protected."[73] However, Google was criticized for taking down (under the Costeja precedent) a BBC News blog post about Stan O'Neal by economics editor Robert Peston (eventually, Peston reported that his blog post has remained findable in Google after all).[74][75] Despite these criticisms and Google’s action, the company’s CEO, Larry Page worries that the ruling will be “used by other governments that aren’t as forward and progressive as Europe to do bad things", though has since distanced himself from that position.[9]

In 2014, the Gerry Hutch page on the English Wikipedia was among the first Wikipedia pages to be removed by several search engines' query results in the European Union.[76][77] The Daily Telegraph said, on 6 Aug 2014, that Wikipedia co-founder Jimmy Wales "described the EU's Right to be Forgotten as deeply immoral, as the organisation that operates the online encyclopedia warned the ruling will result in an internet riddled with memory holes".[78] Other commentators have disagreed with Wales, Julia Powles, for example, argued that "Without the freedom to be private, we have precious little freedom at all",[79] have pointed to problems such as Google including links to revenge porn sites in its search results,[6][80] and have accused Google of orchestrating a publicity campaign to escape the burdensome obligation to comply with the law.[28][30]

On 30 October 2014 pianist Dejan Lazic cited the Right To Be Forgotten in trying to remove a negative review about his performance from The Washington Post. He claimed that the critique was "defamatory, mean-spirited, optionated, offensive and simply irrelevant for the arts".[81][82]

In September 2014, the Polish parish of St Lawrence in Kutno asked Google to remove the Polish Wikipedia page about it ,[83] without any allegations mentioned therein as of that date.

See also[edit]

References[edit]

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Bibliography[edit]

  • Ausloos, Jef. "The 'Right to be forgotten'—Worth remembering?." Computer Law & Security Review 28, no. 2 (2012): 143-152.
  • Bennett, Steven C. "Right to be forgotten: Reconciling EU and US Perspectives, The." Berkeley J. Int'l L. 30 (2012): 161.
  • Blackman, Josh. "Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image over the Internet." Santa Clara L. Rev. 49 (2009): 313.
  • Castellano, Pere Simón. "The right to be forgotten under European Law: a Constitutional debate." (2012).
  • Koops, E. J. "Forgetting footprints, shunning shadows: A critical analysis of the 'right to be forgotten' in big data practice." SCRIPTed 8, no. 3 (2011): 229-256.
  • Palazzi, Pablo. "El reconocimiento en Europa del derecho al olvido en Internet." La Ley 10 de junio de 2014: (2014)
  • Rosen, Jeffrey. "The right to be forgotten." Stanford law review online 64 (2012): 88.

Cases[edit]

  • "Melvin v. Reid" 112 Cal.App. 285, 297 P. 91 (1931)
  • "Sidis v F-R Publishing Corporation" 311 U.S. 711 61 S. Ct. 393 85 L. Ed. 462 1940 U.S.
  • "Google Spain, S.L., Google Inc. y Agencia Española de Protección de Datos (AEPD), Mario Costeja González" ECLI:EU:C:2014:317

Legislation[edit]

  • Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. EU Directive 1995.
  • European Commission. Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and On the Free Movement of Such Data (General Data Protection Regulation). 2012/0011 (COD). Article 3. "Territorial Scope."

External links[edit]