RIGHT TO BE FORGOTTEN IN THE DIGITAL AGE
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Written By; Laza Florina
should the right to be forgotten become an international reality?
The web transforms us. We become a part of the internet by uploading our own lives every second. Everything is listed and nothing is forgotten. In here images are subject to judgments, words are weapons and code is currency. Your life doesn’t belong to you anymore. Do you want the power to change it?
The “right to be forgotten” allows an individual to have personal information or certain data become no longer traceable to other parties. This new right gives people the opportunity to have information, video, photographs about themselves deleted from the internet. People usually speak about the right to privacy as an absolute tool for the protection of personal information regarding someone’s life, but the truth is, it can’t cover the whole spectrum of violations and it most certainly can’t predict every change in the society. As an answer to our newly digitalized lives and technological developments, the right to be forgotten appeared to resolve the issues of having an online persona that never leaves the Internet.
However, the difference between the right to privacy and the right to be forgotten, theoretically speaking, is easy to address. So, while the right to privacy seeks the protection of private information which is unknown to the public, the right to be forgotten involves removing information which is publicly available and could affect one’s reputation, self-being or self-image in the society.
This relatively new concept comes from numerous preexisting European ideas and can be traced back to the French jurisprudence under the name “le Droit à l’oubli”. There’s also a long lasting belief at the roots of the English criminal law that after a regulated period of time a convicted criminal shouldn’t be affected by his past criminal activities while seeking employment or obtaining insurance. So offenders who had served their sentence have a right to integrate themselves into the society and as part of it, they should have the right to erase information regarding their crimes and convictions.
In this particular context, highly influenced by such revolutionary ideas, it was only natural for the European Union to regulate online protection for individuals. First, it was mentioned through the Directive 95/46/EC in Article 12 and later through a draft of the European Data Protection Regulation that was made public by the European Commission with the purpose of improving the original directive by including specific protection regarding the right to be forgotten in Article 17. But nothing significantly changed until the European Court of Justice’s landmark decision in the Costeja case (C-131/12) which affirmed strongly the individual’s right to request the removal of specific results for queries that include their name.
On the other hand, search engines such as Google, Yahoo or Bing still have a discretionary right to refuse an abusive request if the public’s interest in the information is greater than the privacy rights of the individual. I’m referring to requests involving financial scams, professional malpractice, criminal convictions or public conduct of government officials. Therefore, it is expected that many powerful individuals may use this opportunity to erase all mentions of criminal activity or criminal affiliation, but the public’s interest must prevail over a simple whim.
To put this newly recognized right into practice, one must complete a form through the search engine’s website. For the process to be complete you have to follow some steps. First, you need to submit a digital copy of a form of identification even when you are making the request on behalf of someone else. You, also, have to disclose some personal information such as country of residence, address, name etc. To conclude this request, you must mention the list of URLs that you want to remove along with a short description of your reasoning. If the request is approved, the content can no longer appear in search results when typing your name or the person’s in whose name you made the request, but it still stays online. And so, the information is no longer traceable when using European Google search engines, but the Internet users can still found the same information using another type of engine.
The UE has been trying to spread the process all over the globe to eliminate this problem, but with no success. Although considering what it took for Google to recognize this new right solely on European soil, it’s no surprise that the process didn’t become a global trend.
But in what circumstances Google was left armless in front of the European Court of Justice’s historical landmark decision?
Everything started in 1998 when a Spanish citizen, Mario Costeja Gonzalez had to put his property at auction as a result of having serious financial problems, and everything was made public through a digitalized article posted in La Vanguardia newspaper. Almost two decades later, Gonzalez has overcome his financial difficulties and paid his debt, but the search engines left him with a permanent mark which affected his reputation. Initially, Mr. Gonzalez asked for the removal of the link at the Spanish Agency of data protection, but it only accepted a complaint against Google to remove the content.
As a response, Google sued him in the National High Court of Spain and ultimately the case arrived at the hands of the European Court of Justice’s judges who decided in favor of Mr. Gonzalez’s demands. And this is how Google had to finally comply with the EU data privacy laws and create a sustainable system for the application. Therefore, now any European individual can fill a takedown request to search providers to have certain personal data unavailable, but of course, only by respecting a designated set of rules.
I suppose there is no surprise that Facebook has the most amounts of removed links with a total of 11,973 URLs removed in 2014. He is followed by YouTube with 5, 999 URLs, and then Google Groups with 7,246, and Twitter with 4,588 URLs.
In India, the right to be forgotten had been accepted and applied only recently in a legendary judgment by the Karnataka High Court. But what’s the story behind it? Everything started when a woman went to court to obtain the annulment of a marriage certificate. Later the parties reached a compromise resulting in the withdrawal of the complaint, but the woman’s father requested his daughter’s name to be removed from search engines regarding criminal cases because this association might permanently affect her relationship with her husband, her reputation, and image in the society. The Karnataka High Court approved the request, stating that the woman had a right to protect her reputation in the society and so a right to be forgotten.
Moreover, it was the court that stated how this decision follows the trend of Western countries where the right to be forgotten is constantly applied in “sensitive cases involving a woman in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned”.
This month, the Delhi High Court is hearing a case in which the petitioner requested for the removal of a judgment involving his mother and wife from an online judgment portal because this could potentially affect his reputation and employment opportunities. Trying to resolve the issue, the court addressed the notorious American multinational technology company, Google Inc., by asking if the right to delink from the Internet irrelevant information is included in the right to privacy. In response, Google stated that there is no reason or creation of a separate legal framework under “right to be forgotten” to delink “irrelevant information” from the internet.
Currently, the right to be forgotten is still under strong debates and it will take some time for it to finally become an internationally accepted legal standard. But what are the consequences? And what can we do? In this digitalized society, children live in an environment where everything you do online is constantly monitored and listed through algorithms that use things like search history, known interests, current location to meet the needs of virtual users. This cruel reality is that the online actions of today may permanently destroy the future job prospects of tomorrow. So, at least for now we should seriously consider the implementation of digital education in schools with emphasis on the power of online information and how it could potentially affect us.
Also, it was inevitable for this newly addressed concept to be surrounded by controversy. Critics say that the right to be forgotten raises questions about territorial sovereignty and argue that censoring certain information through search engines is a violation of the freedom of expression, freedom of the press, freedom of speech and the right to know. But should those rights be favored instead of the right to be forgotten or should we take a different kind of approach? After all, each case is unique by having its own background story and a universal recipe is unlikely to reach an international consensus. People are designed to be different and everyone matters regardless of their stature, race, preferences, political affiliation, bank account or personality and so on. Therefore, every story should be processed by the right people to make the correct decision. In my opinion, there must be an international system with legal regulations that apply to everyone equally.