Thursday, March 1, 2012

Right to be Lost in Oblivion

We all have moments in our lives that we most passionately wish never happened—gestures that we shouldn’t have made, words we shouldn’t have uttered, pictures we shouldn’t have been allowed to be taken, and, for some, videos we shouldn’t have been a part of. These are events that we would like to keep buried deep in a dark hole no one could reach. If these instances are stored in our memories, then it’s easier to deal with them. Memories are fickle things that tend to forget certain details. But the Internet, hard drives, and servers are different things altogether. They have limitless (or expandable) memories that remember everything. Indeed, we might have participated in putting up our life’s events online, but that doesn’t mean we want these moments (or lapses in our judgments) to be available for access forever. ‘Tis a fact of life in the digital age, which we must live with. Or do we?

The European Commission has proposed a comprehensive reform of data protection rules to strengthen online privacy rights and boost Europe’s digital economy. Most chilling and relevant to us is the reform introducing 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.” However, this right to be forgotten has ramifications that go far beyond what is sought to be protected. For one thing, it represents the biggest threat to free speech on the Internet. Prof. Jeffrey Rosen from the George Washington University weighs in on the issue:

The restriction is “not limited to personal data that people ‘have given out themselves’; instead, they create a new right to delete personal data, defined broadly as ‘any information relating to a data subject.’ For this reason, they arguably create a legally enforceable right to demand the deletion of any photos or data that I post myself, even after they’ve gone viral, not to mention unflattering photos that include me or information about me that others post, whether or not it is true.

According to the regulation, when someone demands the erasure of personal data, an Internet Service Provider “shall carry out the erasure without delay,” unless the retention of the data is “necessary” for exercising “the right of freedom of expression,” as defined by member states in their local laws… If I contact Facebook, where I originally posted the embarrassing picture, it must take “all reasonable steps” on its own to identify any relevant third parties and secure the takedown of the content. At the very least, Facebook will have to engage in the kinds of difficult line-drawing exercises previously performed by courts. And the prospect of ruinous monetary sanctions for any data controller that “does not comply with the right to be forgotten or to erasure”—a fine up to 1,000,000 euros or up to two percent of Facebook’s annual worldwide income—could lead data controllers to opt for deletion in ambiguous cases, producing a serious chilling effect. For a preview of just how chilling that effect might be, consider the fact that the right to be forgotten can be asserted not only against the publisher of content (such as Facebook or a newspaper) but against search engines like Google and Yahoo that link to the content.”

Spain has a tough set of policies regarding the “right to be forgotten,” under which people can go to the courts or the country's data protection authority to demand companies delete various records about them. Peter Fleischer, a privacy lawyer of Google, had this to say about it: “As search engine intermediaries, Google and other search engines play no role in what… web sites publish, or in deciding whether they should revise or remove content based on someone's privacy claim against them. That's why I think it's wrong that the Spanish Data Protection Authority has launched over a hundred different privacy suits against Google, demanding that Google delete web sites from its index, even though the original websites that published the information (including Spanish newspapers and Spanish official government journals) published that information legally and continue to offer it. The legal question is important: should search engines like Google be responsible for the content of the web sites that they index?”

This proposed right to be forgotten has far-reaching effects that practitioners and scholars can only speculate on until laws for their enforcement are enacted. However, people should take comfort in the words of EU Commissioner Viviane Reding: “The right to be forgotten is of course not an absolute right. There are cases where there is a legitimate and legally justified interest to keep data in a database. The archives of a newspaper are a good example. It is clear that the right to be forgotten cannot amount to a right of the total erasure of history. Neither must the right to be forgotten take precedence over freedom of expression or freedom of the media.”


Candice See
Blog Entry #11

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