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The Right to be Forgotten

The Right to be Forgotten 1

Much has been written this week about the so-called “Right to be Forgotten” in the wake of the Court of Justice of the European Union decision requiring Google to “listen and sometimes comply when individuals request the removal of links to newspaper articles or websites containing their personal information.

But what exactly is this “right”? Jeffrey Rosen, Professor of Law, The George Washington University and Legal Affairs Editor, The New Republic, wrote an article addressing exactly that question in the Stanford Law Review in 2012 (remember to think about who the author and publisher are!):

At the end of January, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right—the “right to be forgotten.” The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation. Although Reding depicted the new right as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.

In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizes le droit à l’oubli—or the “right of oblivion”—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page.[1]

European regulators believe that all citizens face the difficulty of escaping their past now that the Internet records everything and forgets nothing—a difficulty that used to be limited to convicted criminals. When Commissioner Reding announced the new right to be forgotten on January 22, she noted the particular risk to teenagers who might reveal compromising information that they would later come to regret. She then articulated the core provision of the “right to be forgotten”: “If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.”[2]

In endorsing the new right, Reding downplayed its effect on free speech. “It is clear that the right to be forgotten cannot amount to a right of the total erasure of history,” she said.[3] And relying on Reding’s speeches, press accounts of the newly proposed right to be forgotten have been similarly reassuring about its effect on free speech. In a post at the Atlantic.com, Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten, John Hendel writes that although the original proposals a year ago “would have potentially given people the ability to cull any digital reference—from the public record, journalism, or social networks—they deemed irrelevant and unflattering,” Reding had proposed a narrower definition of data that people have the right to remove: namely “personal data [people] have given out themselves.”[4] According to Hendel “[t]his provision is key. The overhaul insists that Internet users control the data they put online, not the references in media or anywhere else.”[5]

[continues at Stanford Law Review]

For a different take BBC News attempts the answer the same question:

…The internet (almost) never forgets.

Google – and other search engines – are extremely efficient at crawling the web to find and store data. Even if websites are taken offline, a cache is kept – meaning they can still be accessed.

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This is good for making the web as useful as possible, but bad if you don’t like what it finds about you.

In Mr Gonzalez’s case, Google must now remove the search results that come up about the auction of his property.

It is Mr Gonzalez’s right, the EU says, for that information to be confined to history – or at least, a history only findable by the very dedicated. The information will still be online, just not indexed by the search engine.

The decision has wide-reaching implications.

The EU has been pushing heavily for a new law on data privacy – of which “right to be forgotten” is a key component – since it proposed guidelines in January 2012.

It argues that old, inaccurate or even just irrelevant data should be taken out of search results if the person involved requests it.

Eventually, the EU hopes the “right to be forgotten” principle will extend further. Those drunken pictures from your university days? The EU thinks you should have the right to demand that social networks get rid of them completely – as well as any bit of data on you they may hold.

If the full proposals are passed, firms that do not comply with the law could be fined around 1% of their global revenues…

[continues at BBC News]

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