The Right to Be Forgotten: Remarks on Its Impact on Free Speech and Right of the Public to Remember

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The Right to Be Forgotten: Remarks on Its Impact on Free Speech and Right of the Public to Remember

  1. 1. The Right to Be Forgotten: Reflections onCynicisms and Possible Responses Kinfe M. Yilma 9th May/2012 Current Developments in Information Society(Law) NRCCL-CRIDS University of Namur, Belgium
  2. 2. Outline• Introduction• Meaning, Nature and Rationale• Concerns -Free Speech -General Interest of the Public to Remember• Conclusion
  3. 3. Introduction• Ubiquitous digital remembering enables easy availability of personal data to a wide array of audience including prospective employers“Technologies are making the past easily and eternally present”[Allen, 2008]• Web 2.0 accelerates the rate of unwanted publicity and invasion of data privacy• First hand victims are teenagers• Right to be forgotten proposed• Focus: Is the right really a threat?
  4. 4. Meaning, Nature and Rationale(1)• The French ‘le droit à l’oubli’[Right of Oblivion] of 1999 is often mentioned as the intellectual root for the right to be forgotten.[Rosen, 2012] It entitles complete erasure of ones criminal record after discharging jail time.• This view is partly dubious as the right(privilege) to demand erasure of criminal history existed even earlier before 90s, at least for more than half a century. -E.g. Repealed Ethiopian Penal Code(1957) recognized ‘privilege’ of ‘reinstatement’ to, i.a.,persons who have undergone their penalties[Arts
  5. 5. Meaning, Nature and Rationale(2)▪Spain pioneered in introducing the right to be forgotten as we know it today.[Castellano, 2012] ‘citizens, who neither are not public figures nor are subject of news of public relevance, have right to react and correct the unlawful inclusion of personal data on the internet.’▪Google has been ordered to delete links to any website containing nasty content in violation of the right to be forgotten. The case is now referred to court of Justice for preliminary ruling.[AEPD vs Google]
  6. 6. Meaning, Nature and Rationale(3)EU:• Initially outlined on 4th Nov. 2010, COM(2010) 609 as part of overhaul of DPD/46/95/EC• Formally proposed on 25th January/2012, COM(2012) 11Rationale:-building users trust on online services and increasing control of personal information-protecting the youth(cf. Art 17, Recital 53, DPR)-Inadequacy of the existing regime
  7. 7. Meaning, Nature and Rationale(4)Meaning and Nature:• The right implies a ‘control-right’ of the data subject to decide on fate of data on him.[Ausloos, 2012]• ‘the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes’ [COM(2010) 609 ]
  8. 8. Meaning, Nature and Rationale(5)• Right to be forgotten is implicit in extant data protection principles - personal data cannot be kept longer than is necessary for the purpose for which it is collected or further processed[Art 6(e), DPD] - the right of data subjects to obtain from the data controller eraser or blocking of data[Art 12(b), DPD] - the general right to object data processing[Art 14, DPD]• Limited scope and imprecision of what constitutes consent crippled the reach of these principles
  9. 9. Meaning, Nature and Rationale(6)• One can also read the ‘aroma’ of the right to be forgotten into the e-privacy and data retention directives - traffic data must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication[Art 6, e-Privacy Directive] -service providers must store traffic and location data for up to two years[Art 3, Data Retention Directive]
  10. 10. ConcernsI. Issues of Free speech▪Concerns mainly come from free speech over- protective US camp -The concerns are premised on a higher level of protection given to privacy rights in Europe than free speech.▪Rosen argues ‘the right to be forgotten would require controllers to delete personal data which have gone viral over the net.’[Rosen, 2012]▪He also claims that the right could be invoked against search engines which just ‘link’ to content
  11. 11. Concerns(2)▪ Huge fines ensuing non-compliance up to €500,000 or 1% of annual world wide income[Art 79(5(c))] would induce self-censorship Possible Responses▪The right is restricted to seeking deletion and further dissemination(sic)…[Art 17(1)] -Likely to exonerate from complying with request for deletion of data which have gone viral and undeletable
  12. 12. Concerns(3)▪ The right is enforceable only against ‘controllers who authorized a third party publication of personal data’(sic)[Art 17(2), Recital 54, DPR] -This may not necessarily apply to search engines which just provide links to content -The upcoming ECJ ruling in Google Spain vs AEPD would probably throw light on this -Another basic issue would be ‘are search engines controllers within the meaning of Art 2(d), DPD? -WP 169 doesn’t give a clear answer -Bygrave writes ‘control’ is the crucial criterion
  13. 13. Concerns(4)▪Exceptions for exercising right of freedom of expression[Art 17(3(a)) cum Art 80, DPR] - European case law also reveals beckoning protection to free speechExamples: ●Winer v UK(1978) ●Von Hannover v Germany(2004) ● Satakunnan Markkinapörssi and Satamedia(C- 73/07) ● Volker und Markus Schecke GbR and Hartmut Eifert(Joined Cases-C-92/09 and C-93/09)
  14. 14. Concerns(5)II. General Interest of the Public to Remember▪ Right to be forgotten would render otherwise important data inaccessible, incomplete and misrepresentative of reality[Ausloos]▪ Dwindles right to information of the public Possible Responses▪Deletion cannot be claimed where ‘the data are necessary’[acontrario reading of Art 17(1(a)), DPR]▪Deletion doesn’t apply where data are necessary for reasons of public interest, historical, stastical and scientific research purposes[Art 17(17(3(b,c)), 81, 83, DPR]
  15. 15. Conclusion▪The right to be forgotten is a leap forward in regaining control over ones data in the digital age▪Introduction of the right per se would not be a threat as advertised▪Issues of who decides what data is no longer necessary, liability of intermediaries have to be, though, hammered down -Cf. Commission empowered to adopt specific criteria[Art 17(9) cum Art 86, DPR]
  16. 16. Conclusion(2)Supplementary Measures▪Awareness creation via, e.g. EU standard privacy information notices▪Encouraging self-regulation through codes of conduct(Art 38, DPR)▪Encouraging Technical measures -E.g. Tigertext, X-Pire cf. ‘Expiration Dates’[Mayor-Schonberger, Delete(2009)]▪Rosen proposes Japanese Web 2.0 users culture of using pseudonyms online cf. ‘Digital Abstinence’
  17. 17. References• Allen(2008), Dredging up the Past: Lifelogging, Memory and Surveillance, 75 Univ. Chic. L. Rev. 47• Ausloos(2012), The Right to be Forgotten-Worth Remembering?, Computer Law and Security Review• Castellano(2012), The Right to Be Forgotten Under European Law: A Constitutional Debate, Lex Electronica, Vol. 16, No. 1• Rosen(2012), The Right to Be Forgotten, 64 Stanford Law Review Online 88• Rosen(2011), Free Speech, Privacy, And The Web That Never Forgets(Keynote Address), Journal on Telecommunication and High Technology Law, Vol. 9• Weber(2011), The Right to Be Forgotten: More Than a Pandora’s Box?, 2JIPItec 120

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