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The Right to be Forgotten

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The “right to be forgotten” is the idea that individuals have the right to “determine the development of their life in an autonomous way, without being stigmatized due to an action performed in the past.” (Mantelero, 2013).

The “Right to Be Forgotten” in the European Union

In 2012, the European Commission disclosed a draft of the European Data Protection Regulation that was intended to supersede the previous directives, and which includes specific protection in the right to be forgotten in Article 17 (European Commission).

To exercise the right to be forgotten and request removal from a search engine’s search results, one must complete a form through the search engine’s website. When an applicant applies to be forgotten with Google, for instance, they receive an email confirming that their request was received. After a request is received, Google’s removal team reviews the request, weighing “the individual’s right to privacy against the public’s right to know”, deciding if the website is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed” (Brindle).

If the request is approved, searches using the individual’s name will no longer result in the content appearing in search results. The content remains online, however, and is not erased (How Google’s New “Right To Be Forgotten” Form Works: An Explainer).

Benefits of Implementing the “Right to Be Forgotten” law

Those in favor of the “Right to Be Forgotten” law argue that once their debt to society has been paid, the person should be able to move on with their life without their past being permanently chronicled on the internet for all to see. There is certainly something to be said for this argument. After all, smartphones with built-in cameras mean that even the smallest childhood wrongdoing is digitally recorded for what seems like an eternity.

Some academics argue that instead of trying to limit the data available online, we should instead promote anti-discriminatory laws for this situation (Chawla, 2019). Unfortunately, this is easier said than done, since discrimination can sometimes be very subtle and therefore difficult to prove. And with the far-reaching access we willingly give to social networks, some may wonder if consumers are not to blame.

Facebook and privacy >>

Drawbacks of Implementing the “Right to Be Forgotten” law

There are a few concerns with the right to be forgotten, however, and these must, of course, be weighed against the benefits of implementing such a law.

The right to be forgotten and the freedom of speech

Some academics believe that only a limited form of the right to be forgotten would be permissible within the confines of US constitutional law. This option would be limited to the right of an individual to delete data that they personally created and uploaded to the internet themselves (Hendel, 2012).

The right to be forgotten, censorship, and the rewriting of history

As stated by Jennifer Granick, a lawyer for Electronic Frontier Foundation, an online civil liberties group, “He who controls the past, controls the future.” She went on to say that the case “really is about editing history” (Schwartz, 2009).

By limiting the right to be forgotten to only erasing content the person made themselves, the individual could not have material removed that has been created and uploaded by others, since expecting this removal of this type of information could constitute censorship and a reduction in the freedom of expression in many countries (Bernal, 2011).

Wolfgang Werlé and the “Right to Be Forgotten” law

Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now, they are suing Wikipedia to forget them. While the Germans have successfully been forgotten by German news accounts, they are demanding that the Wikimedia Foundation, the American organization that runs Wikipedia, remove their names from the English version of the website as well (Schwartz, 2009).

Of course, this pits their right to privacy against the American freedom of speech.

International Instances of the “Right to Be Forgotten” law

The “Right to be Forgotten” law has been implemented in multiple countries across various continents.

Spain

In May 2014, the European Court of Justice ruled against Google in a case against Mario Costeja González. Costeja was requesting that a link to an article in an online newspaper be removed because it discussed his home being foreclosed and at auction, even though he had since taken care of the debt.

The court ruled that search engines are responsible for the content they point to and therefore, Google was required to comply with EU data privacy laws and take down the link to the article. On its first day of compliance (May 30, 2014), Google received 12,000 requests to have personal details removed from its search engine (David, 2014).

South Korea

In May 2016, the Korea Communications Commission (KCC) in South Korea stated that citizens will be permitted to request search engines and website administrators to restrict their own postings from being publicly accessible. To the extent that the right to be forgotten concerns a data subject’s right to limit the searchability of third-party postings about him/her, the KCC’s ruling does not constitute a right to be forgotten.

To be fair, regarding the right to withdraw one’s own posting, critics were quick to note that people had been able to delete their own posts before the Guideline was implemented as long as they had retained their login credentials. To that end, the KCC’s ruling is not so much an implementation of the right to be forgotten as a reminder that you are able to erase your own published data (South Korea Releases Right to Be Forgotten Guidance).

China

It is worth noting that while the “Right to be Forgotten” is spreading across the globe to a greater or lesser extent, there are some nations in which it is being considered and subsequently not implemented.

A Beijing court has ruled that Chinese citizens do not have the right to be forgotten on the Internet. The case in question was brought forth by Ren Jiayu, 44, who sued Baidu after he searched for his own name and found search engine results that associated him with one of his previous employers, the company Wuxi Taoshi Biotechnology. Ren said that the organization is not well-regarded and that being associated with them had resulted in him being unable to find a new job (Jubb, 2016).

Ren claimed that by presenting the search results, Baidu infringed upon his “right of name,” as well as his “right of reputation,” which should protect him against libel and slander. Both rights are protected under Chinese law. Therefore, Ren claimed, he had a “right to be forgotten,” or to have information about him deleted from Internet searches.

It was the first ever case on the “right to be forgotten” to come before a court in China (Jubb, 2016).

Conclusion

In sum, there are certainly some benefits and drawbacks to implementing a law protecting the right to be forgotten. Though it has already been seen across multiple countries in the world, critics against the law say that implementing it in the United States would have negative ramifications. The criticisms include the potential for violation of the freedom of speech, as well as the potential for censorship and rewriting of history.

Other writings on

References

Bernal, Paul Alexander (2011). “A right to delete?”. European Journal of Law and Technology. 2 (2).

Brindle, Beth. “How can Google forget you?”. How Stuff Works. Retrieved 20 February 2019.

Chawla, A. (2019, January 28). Should we Have a Right to Be Forgotten? Retrieved from https://ischool.syr.edu/infospace/2018/06/01/should-we-have-right-to-be-forgotten/

David Streitfeld (13 May 2014). “European Court Lets Users Erase Records on Web”. New York Times. Retrieved 21 February 2019.

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 17. Right to be forgotten and To Erasure

Hendel, John (2012-01-25). “Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten'”. The Atlantic. Retrieved 2019-2-21.

“How Google’s New “Right To Be Forgotten” Form Works: An Explainer”. Search Engine Land. 30 May 2014.

Mantelero, Alessandro (2013). “The EU Proposal for a General Data Protection Regulation and the roots of the ‘right to be forgotten'”. Computer Law & Security Review. 29 (3): 229–235. doi:10.1016/j.clsr.2013.03.010

Schwartz, J. (2009) Two German Killers Demanding Anonymity Sue Wikipedia’s Parent. Retrieved from: http://www.nytimes.com/2009/11/13/us/13wiki.html

“South Korea Releases Right to Be Forgotten Guidance”. www.bna.com. Retrieved 2019-02-20.

Jubb, Nathan (2016). “Chinese Have No Right to Be Forgotten, Court Rules”. Sixth Tone. Retrieved 2019-02-20.

Volokh, Eugene (2000). “Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking about You”. Stanford Law Review. 52 (5): 1049–1124. doi:10.2307/1229510.

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