Right to be Forgotten: Privacy, Censorship or Neither?

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All of us, at some stage or the other, have typed our names into various search engines. Some have been met by a wall of fame meticulously archiving all their wonderful achievements. Others, including myself, have been met by a chronicled horror show of teenage angst and a laundry list of things we wish we hadn’t said or done. For the latter we all desperately wish we could erase all evidence of our naïve past from the vast cosmoses of the Internet.

The debate on the privacy of one’s information online has stretched on for a very long time now, yet it is no closer to a conclusive, accepted standard than it was when it first started. However, a recent EU ruling suggests it has settled on a standard – acceptable or not is up for debate.

EU Ruling

The debate over the right to be forgotten, at least in the European Union culminated on the May 13, 2014, when the European Court of Justice, in a lengthy decision in the case of Google Inc v Mr Costeja González, ruled that any individual could demand that a search engine remove all unwanted information about the individual from its index – regardless of whether it were accurate, lawful, or publicly available elsewhere.

In the case itself, a legally published article from a newspaper in 1998 detailing Mr González’s non-payment of his mortgage had been archived online and searching for his name on Google brought up the article as one of the results. Mr González sought to have Google remove the archive as he believed it acted to his detriment and infringed upon his privacy.

Given the reaction and criticism the ruling has elicited, the case is not as straightforward as the ruling may suggest. One of the questions being asked is why must onus to remove data be on a search engine when it is not responsible for the publication of that data (and that it is the user who chooses to publish). With regards to this, judges opined that the indexing of pages on the Web fit the definition of “processing” data as per the Data Protection Directive 95/46/EC, which Google was under a legal duty to abide by. The Court felt that by aggregating a vast amount of data on an individual, a search engine creates a larger illustration of the individual that would otherwise “not have been interconnected or could have been only with great difficulty.”

The ruling however creates an exception to the rule. The court held that the right to be forgotten could not be applied if there was an “interest in the public having that information… [and] the role played by the data subject in public life.” This is vastly open to interpretation. What satisfies the threshold of an individual playing a substantial role in public life? Is the threshold satisfied if he/she is a politician? If he/she has five-figure Facebook friends /Twitter followers? What about a circumstance in which an individual is not a “public personality” at that point in time and successfully manages to have data on him/her removed from search engines, only to later become the Prime Minister of the country? Will the onus be on a company/search engine to restore all data on the individual that they previously expunged?

To further illustrate the complexities of such a threshold, how it is to be determined and by whom, here is a list of individuals who have requested Google to have data on them removed from its indexes. A list ranging from politicians, celebrities, doctors, to convicted sex-offenders.

Prior to the ruling by the European Court of Justice, Google policy dictated it would remove any information from its index if it made individuals susceptible to certain harms. The ruling however goes a lot further and allows individuals to erase their digital footprint even in cases where it may be highlighting previous misdemeanours. It is therefore no surprise that both Google and Wikimedia – the parent company of Wikipedia – have deemed the EU ruling to be “astonishing.”

It is interesting to review the impact of this ruling in the context of a on recent case in local German courts. Wolfgang Werlé and Manfred Lauber’s claim to fame was their murder of a German actor in 1990. They sued Wikimedia to “forget them” and remove all mention of their past act. Under German law, a criminal’s name can be suppressed in news accounts once he/she has served his/her sentence. The German courts, in line with precedent, did order Wikimedia to suppress all content related to the two, however, as Wikimedia had no local operations in Germany, it was not jurisdictionally obligated to abide by a decision of a German court.

If jurisdiction were not a barrier, the outcome in the above-mentioned case would boil down to a question of whether the public has an interest in knowing the past actions of Werlé and Lauber. That is a criteria easy to stretch to fit any narrative, for example, one could put forth the argument that the convicted individuals had a better chance of rehabilitation if their history was expunged. If such an argument succeeded, it would be akin to individuals erasing an integral part of their past, and denying their future associates access to information that perhaps should be known to them before embarking on a mutual endeavor.

Requiring intermediaries to alter – and as viewed by some, censor – data on the Internet could, in the long run, stifle intermediaries, restricting them from providing services that afford free and easy access to information. Also, if legally obtained and published information about individuals starts being removed, neutrality of data and the Internet would be further diminished.

Quoting Orwell, “He who controls the past, controls the future,” said a statement on the case issued by the Electronic Frontier Foundation, an online civil liberties group. In this case, the lines are blurred and who has the authority to do what is unclear.

Divergent views on the ‘right to be forgotten’

The right to be forgotten is a dangerous path to tread upon, argues Jeffrey Rosen, professor of law at George Washington University. If unfettered permission is granted to expunge people’s past, ideals of free speech and a neutral Internet can quickly be forgotten, and corporations and powerful individuals will have greater authority to control the flow of information online.

Proponents of the ‘right to be forgotten’ argue that every individual deserves the right to privacy. The vast picture of our stories that is painted across the internet can be collected by people and used in order to commit a vast range of misdeeds, ranging from identity theft to stalking individuals. On the other hand, opponents of the ‘right to be forgotten’ claim all information available on the Internet is published legally – and often voluntarily self-published by an individual online. Their view on the ‘right to be forgotten’ is that is just another way enabling governments, companies and individuals to exert control over what may and what may not be published online. On the flip side, if one is not allowed to remove their digital footprint under certain circumstances, there can be a very real threat to the security of their person. Striking a balance between the two extremes is imperative.

The cultural juxtaposition between the respective approaches of the EU and US towards this issue, poses an interesting reading. While the EU has acted to limit the scope of information that is publicly accessible citing privacy laws, the US and its First Amendment stand in direct opposition. Accurate or not, what the two divergent positions have been defined as are privacy vs censorship.

What the debate really boils down to is a question of individual liberties: does the liberty to either express oneself or access legitimate information outweigh the need to protect one’s privacy? Is it even valid to deem acts legitimately published in the public domain as private? Is this polarity reasonable to begin with? The answers to these questions require also are not straightforward and call for complex reasoning and, at a glance, consideration that this is anything but a simplistic matter and requires further deliberation is found missing in the European Court’s decision.

The majority view on the decision is that it is sweeping in nature and seemingly fails to address the balance between public and private data. According to the Stanford Law Review, it is imperative to draw up a comprehensive policy that provides a clearer framework of data that ought to be protected, and data that need not be. However, such policies must ensure that the right to free expression and access to information are construed widely and only subverted where there is legitimate harm being caused to an individual not to hide a ‘wrongdoing’ on their part.

Edit: Since this article was published Google has launched a portal wherein European citizens can request that links containing information about them are removed from search result pages.This is the first step to comply with a court ruling affirming the “right to be forgotten”.

References

The Stanford Law Review

The European Journal of Law and Technology

The New York Times

The Guardian

Yelmaz Waris Mujtaba is a Program & Research Associate at Bolo Bhi. He has completed his Bachelors in Law from the University of London International Programme. He has represented Pakistan at numerous international youth-based events stretching from the United States of America to Australia. He has an avid interest in sports, writing, and Public International Law.

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