Analyzing the EU’s “right to be forgotten” Presentation by: Alyah Khan Photo courtesy of Flickr CC
Client• Analysis conducted on behalf of European Digital Rights (EDRi), an international advocacy group headquartered in Brussels, Belgium.• Goal of EDRi: Protect digital civil rights in the information society.
Purpose of report• Analyze the feasibility and effectiveness of EU’s proposed “right to be forgotten”• Examine policy’s scope, applicability and potential impact on freedom of speech
EU proposes data protection reform• January 2012: European Commission proposes comprehensive reform of its 1995 data protection rules.• Reform includes several changes intended to strengthen online privacy rights and enhance Europe’s digital economy.• Most controversial provision is the “right to be forgotten” – Focus of this report
EU perspective on personal data protection Viviane Reding, European Commission, said on January 25: Photo courtesy of AP“The protection of personal data is a fundamental right forall Europeans, but citizens do not always feel in full control oftheir personal data. My proposals will build trust in onlineservices because people will be better informed about theirrights and in more control of their information.”
Perspective of EU citizens• More than half of Europeans feel that they must disclose personal information if they want to obtain products or services.• Yet, only 26 percent of social network users and 18 percent of online shoppers feel in complete control of their data, according to a 2011 survey. Source: Citizens’ perceptions of data protection and privacy in Europe
Article 17: right to be forgotten and to erasure• Policy is laid out in Section 3, Article 17 of the EU’s proposed data protection regulation.• Right enables people to delete their data (text, photos, videos) if there are no “legitimate grounds” for retaining it.
Analysis: Scope & Applicability– Scope of policy is too broad and could lead to enforcement discrepancies among countries– Policy wrongly places “burden of proof” on users– Policy fails to address issue of how to request erasure of cross-posted information with any clarity– Responsibilities of data controllers (Facebook, Google, YouTube) are not clearly articulated
Analysis: Impact on Free Speech• Rosen (2012) said “right to be forgotten” represents the “biggest threat to free speech in the coming decade.”• EDRi also concerned right could be misused as a tool for censorship.• Other scholars said the right could produce a “chilling effect” caused by deletion in ambiguous cases.
Impact on Free Speech, cont’d• Clash between EU and U.S. conceptions of free speech and privacy could result in a far less open Internet• There is the potential for erasure of important information. As Ausloos (2012) stated, “Culture is memory.”
The policy requires substantial revisions in orderto meet its goal of strengthening personal dataprotection without causing undue erasure.
Suggested revisions• Limit the scope of the policy so that it applies only to data that users have consented to.• Define the right to be forgotten in specific terms by clearly articulating situations where erasure is appropriate.• Explain the materials or information (i.e. the proof) required to request erasure.
Suggested revisions cont’d• Address the issue of information cross-posted on multiple platforms and whether it is up to users to ensure erasure is carried out to the fullest extent.• State as explicitly as possible the responsibilities of data controllers in terms of fulfilling an erasure request.
Conclusion• By making the suggested revisions and seeking the input of data controllers, the policy stands a greater chance of succeeding in the future.• If the “right to be forgotten” is effectively implemented across Europe, a new global standard will emerge for the protection of personal data.• The balance of power will shift in favor of individuals.• It remains to be seen whether other countries, such as the U.S., will consider a similar policy.