Right to be forgotten

The right to be forgotten is a concept discussed and put into practice in the European Union (EU) and Argentina since 2006.[1][2] The issue has arisen from desires of individuals to "determine the development of their life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past."[3]:231 There has been controversy about the practicality of establishing a right to be forgotten to the status of an international human right in respect to access to information, due in part to the vagueness of current rulings attempting to implement such a right.[4] There are concerns about its impact on the right to freedom of expression, its interaction with the right to privacy, and whether creating a right to be forgotten would decrease the quality of the Internet through censorship and a rewriting of history,[5] and opposing concerns about problems such as revenge porn sites appearing in search engine listings for a person's name, or references to petty crimes committed many years ago indefinitely remaining an unduly prominent part of a person's footprint.[6]

Conception and proposal

Europe’s data protection laws are intended to secure potentially damaging, private information about individuals. The notion of "the right to be forgotten" is derived from numerous preexisting European ideals. There is a longstanding belief in the United Kingdom, specifically under the Rehabilitation of Offenders Act, that after a certain period of time, many criminal convictions are “spent”, meaning that information regarding said person should not be regarded when obtaining insurance or seeking employment. Similarly, France values this right - le droit d’oubli (the right to be forgotten).[7] It was officially recognized in French Law in 2010.[8] Views on the right to be forgotten differ greatly between America and EU countries. In America, transparency, the right of free speech according to the First Amendment, and the right to know have typically been favored over the obliteration of truthfully published information regarding individuals and corporations. The term “right to be forgotten” is a relatively new idea, though on May 13, 2014 the European Court of Justice legally solidified that the "right to be forgotten” is a human right when they ruled against Google in the Costeja case.

In 1995 the European Union adopted the European Data Protection Directive (Directive 95/46EC) to regulate the processing of personal data.[9] This is now considered a component of human rights law.[10] The new European Proposal for General Data Protection Regulation provides protection and exemption for companies listed as “media” companies, like newspapers and other journalistic work. However, Google purposely opted out of being classified as a “media” company and so is not protected. Judges in the European Union ruled that because the international corporation, Google, is a collector and processor of data it should be classified as a “data controller” under the meaning of the EU data protection directive. These “data controllers” are required under EU law to remove data that is “inadequate, irrelevant, or no longer relevant, ” - making this directive of global importance.[7]

Current legal frameworks

The right to be forgotten "reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them."[11]:121 It has been defined as "the right to silence on past events in life that are no longer occurring."[12] The right to be forgotten leads to allowing individuals to have information, videos or photographs about themselves deleted from certain internet records so that they cannot be found by search engines.[11] As of 2014 there are few protections against the harm that incidents such as revenge porn sharing, or pictures uploaded due to poor judgement, can do.[13]

The right to be forgotten is distinct from the right to privacy, due to the distinction that the right to privacy constitutes information that is not publicly known, whereas the right to be forgotten involves removing information that was publicly known at a certain time and not allowing third parties to access the information.[11]:122[14]

Limitations of application in a jurisdiction include the inability to require removal of information held by companies outside the jurisdiction. There is no global framework to allow individuals control over their online image. However, Professor Viktor Mayer-Schönberger, an expert from Oxford Internet Institute, University of Oxford, said that Google can not escape compliance with the law of France implementing the decision of the European Court of Justice in 2014 on the right to be forgotten. Mayer-Schönberger said nations, including the US, had long maintained that their local laws have "extra-territorial effects".[15]

Recognition

European Union

In Article 12 of the Directive 95/46/EC the EU gave a legal base to internet protection for individuals.[3]:233 In 2012 the European Commission disclosed a draft European Data Protection Regulation to supersede the directive, which includes specific protection in the right to be forgotten in Article 17.[16]

To exercise the Right to be Forgotten and request removal from a search engine, one must complete a form through the search engine’s website. Google’s removal request process requires the applicant to identify their country of residence, personal information, a list of the URLs to be removed along with a short description of each one, and attachment of legal identification.[17] The applicant receives an email from Google confirming the request but the request must be assessed before it is approved for removal. If the request is approved, the link is removed from search results but the content, however, remains online and is not completely erased.[18] After a request is filled, their removals team reviews the request, weighing “the individual's right to privacy against the public's right to know,” deciding if the website is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.”[19] Google has formed an Advisory Council of various professors, lawyers, and government officials from around Europe to provide guidelines for these decisions.[20] However, the review process is still a mystery to the general public. Guidelines set by EU regulators were not released until November 2014, but Google began to take action on this much sooner than that, allowing them to “shape interpretation to [their] own ends.”[20] In May 2015, 80 academics called for more transparency from Google, in an open letter.[21]

The form asks people to select one of the twenty-eight countries that make up the European Union, as well as Iceland, Liechtenstein, Norway, and Switzerland.[22] “The form allows an individual or someone representing an individual to put in a request” for the removal of any URLs believed to be a violation of the individual’s privacy.[23] Regardless of who is submitting the form, some form of photo identification of the person the form is being submitted for must be presented. The purpose of this is to provide proof that the person for whom the request is being made for does in fact approve.

The form allows people to submit the name they would like search results removed for. However, it only allows for the submission of one name, which some view as one of its flaws.[23] For example, if someone known as both “Lawrence Smith” and “Larry Smith” were to submit a form for the removal of search results for his name, he would only be allowed to indicate one of these names on the form.[23] Many people view it as inconvenient and believe it is a problem that Google should be able to easily fix.[23]

If Google refuses a request to delink material, Europeans can appeal to their local data protection agency.[24] As of May 2015, the British Data Protection Agency had treated 184 such complaints, and overturned Google's decision in about 1/4 of those.[25] If Google objects to a Data Protection Agency decision, it can face legal action.[26]

In July 2014, in the early stages of Google's effort to comply with the court ruling, legal experts questioned whether Google's widely publicised delistings of a number of news articles violated the UK and EU Data Protection Directive, since in implementing the Directive, Google is required to weigh the damage to the person making the request against any public interest in the information being available.[27] Google indeed acknowledged that some of its search result removals, affecting articles that were of public interest, were incorrect, and reinstated the links a week later.[6][28] Commentators like Charles Arthur, technology editor of The Guardian, and Andrew Orlowski of The Register noted that Google is not required to comply with removal requests at all, as it can refer requests to the information commissioner in the relevant country for a decision weighing the respective merits of public interest and individual rights.[6][27][29]

Google notifies websites that have URLs delinked, and the BBC and other news organizations have published lists of delinked articles. Complainants have been named in news commentary regarding those delinkings. In August 2015 the British Data Protection Agency issued an enforcement action requiring Google to delink some of these more recent articles from searches for a complainant's name, after Google refused to do so.[30] Google complied with the request.[31] Some academics have criticized news organizations and Google for their behavior.[32][33]

As of May 2014, Google has removed 1,390,838 URLs.[34] From a gathering of which websites had the most amount of links removed, Facebook won with a total of 11,973 URLs removed. Youtube had 5,999 removed, Google Groups had 7,246 removed, and Twitter had 4,588 removed.[34] Though Facebook had the largest number of deleted URLs, there were other received requests that were not granted deletion. While Google does evaluate millions of URLs that have been requested to be removed, the ultimate decision must be made by a human “because the variables, including public interest claims, needs to be handled on a case-by-case basis.”[34] However, it is to be kept in mind that internet users can still find removed information somewhat easily, just not through European Google search engines.

In July 2015, Google accidentally revealed data on delinkings, that "shows 95% of Google privacy requests are from citizens out to protect personal and private information – not criminals, politicians and public figures."[35]

This data leak caused serious social consequences for Google as the public expressed their outrage and fear over the information that was recently made public. Though only 5% of requests were made by criminals, politicians, and public figures, the content removed was what sparked the most fear.[36] In particular, one request for data removal was from a British doctor requesting to have 50 links removed on past botched medical procedures. Google agreed to remove three search results containing his personal information.[36] The public voiced their outrage stating that removing such information can be used for manipulation and could lead to innocent people making uninformed decisions. Google responded to the public outrage by saying that when removing content they consider both the right of the individual and public interest.[36]

The European Union has been pushing for the delinkings requested by EU citizens to be implemented by Google not just in European versions of Google (as in google.co.uk, google.fr, etc.), but on google.com and other international subdomains. Regulators want delinkings to be implemented so that the law cannot be circumvented in any way. Google has refused the French Data Protection Agency's demand to apply the right internationally.[37] Due in part to their refusal to comply with the recommendation of the privacy regulating board Google has become the subject of a four-year-long antitrust investigation by the European Commission.[38] In September 2015, the French Data Protection Agency dismissed Google's appeal.[39]

As of September 2015, the most delinked site is www.facebook.com. Three of Google's own sites, groups.google.com, plus.google.com and www.youtube.com are among the ten most delinked sites.[31] In addition to Google, Yahoo and Bing have also put up forms for making delinking requests.

Spain

In May 2014, the European Court of Justice ruled against Google in Costeja, a case brought by a Spanish man, Mario Costeja González, who requested the removal of a link to a digitized 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid.[40] He initially attempted to have the article removed by complaining to the Spanish Data Protection Agency, which rejected the claim on the grounds that it was lawful and accurate, but accepted a complaint against Google and asked Google to remove the results.[41] Google sued in the Spanish Audiencia Nacional (National High Court) which referred a series of questions to the European Court of Justice.[42] The court ruled in Costeja that search engines are responsible for the content they point to and thus, Google was required to comply with EU data privacy laws.[43][44][45] On its first day of compliance only (May 30, 2014), Google received 12,000 requests to have personal details removed from its search engine.[46]

Germany

On October 27, 2009, lawyers for Wolfgang Werlé who—together with Manfred Lauber—was convicted for murdering Walter Sedlmayr sent the Wikimedia Foundation a cease and desist letter requesting that Werlé's name be removed from the English language Wikipedia article Walter Sedlmayr, citing a 1973 Federal Constitutional Court decision that allows the suppression of a criminal's name in news accounts once he is released from custody.[47][48][49] Previously, Alexander H. Stopp, attorney for Werlé and Lauber, had won a default judgment in German court, on behalf of Lauber, against the Wikimedia Foundation.[47] According to the Electronic Frontier Foundation, Werlé's lawyers also challenged an Internet service provider in Austria which published the names of the convicted killers.[50]

Wikimedia is based in the United States, where the First Amendment protects freedom of speech and freedom of the press, under which the articles on Wikipedia would fall. In Germany, the law seeks to protect the name and likenesses of private persons from unwanted publicity.[51] On January 18, 2008, a court in Hamburg supported the personality rights of Werlé, which under German law includes removing his name from archive coverage of the case.[52]

On November 12, 2009, The New York Times reported that Wolfgang Werlé has a case pending against the Wikimedia Foundation in a German court. The editors of the German-language Wikipedia article about Sedlmayr removed the names of the murderers,[47] which have since then been restored to the article. The Guardian observed that the lawsuit has led to the Streisand effect, an upsurge in publicity for the case resulting from the legal action.[53]

On December 15, 2009, the German Federal Court of Justice (Bundesgerichtshof) in Karlsruhe ruled that German websites do not have to check their archives in order to provide permanent protection of personality rights for convicted criminals. The case occurred after the names of the brothers were found on the website of Deutschlandradio, in an archive article dating from July 2000.[54] The presiding judge Gregor Galke stated "This is not a blank check", and pointed out that the right to rehabilitation of offenders had been taken into consideration.[55][56]

Argentina

Argentina has seen law suits by celebrities against Google and Yahoo! in which the plaintiffs demand the removal of certain search results, and require removal of links to photographs.[57] One case, brought by artist Virginia da Cunha, involved photographs which had originally been taken with her permission and uploaded with her permission, however she alleged that the search results improperly associated her photographs with pornography.[58] De Cunha's case achieved initial success resulting in Argentine search engines not showing images of the particular celebrity, however this decision is on appeal.[59]

United States of America

Consideration of the right to be forgotten can be seen in case law, specifically in Melvin v. Reid, and in Sidis v. FR Publishing Corp.[60]

In Melvin v. Reid (1931), an ex-prostitute was charged with murder and then acquitted; she subsequently tried to assume a quiet and anonymous place in society. However, the 1925 film The Red Kimono revealed her history, and she sued the producer.[61][62] The court reasoned that "any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation."[63]

However, in Sidis v. FR Publishing Corp. the plaintiff, William James Sidis, was a former child prodigy who wished to spend his adult life quietly, without recognition; however, this was disrupted by an article in The New Yorker.[64] The court held here that there were limits to the right to control one's life and facts about oneself, and held that there is social value in published facts, and that a person cannot ignore their celebrity status merely because they want to.[64]

There is opposition to further recognition of the right to be forgotten in the United States as commentators argue that it will contravene the right to freedom of speech and freedom of expression, or will constitute censorship, thus potentially breaching peoples constitutionally protected right to freedom of expression in the United States Constitution.[65] These criticisms are consistent with the proposal that the only information that can be removed by user's request is content that they themselves uploaded.[65][66]

In a June 2014 opinion piece in Forbes, columnist Joseph Steinberg noted that "many privacy protections that Americans believe that they enjoy – even some guaranteed by law – have, in fact, been eroded or even obliterated by technological advances." Steinberg – in explaining the need for legislation guaranteeing the "Right to be Forgotten" – noted that existing laws that require adverse information to be removed from credit reports after a period of time, and that allow the sealing or expunging of criminals records, are effectively undermined by the ability of prospective lenders or employers to forever find the removed information in a matter of seconds by doing a Google search.[67]

On March 11, 2015, Intelligence Squared US, an organization that stages Oxford-Style debates, held an event centered on the question, "Should the U.S. adopt the 'Right to be Forgotten' online?" The side against the motion won with a 56% majority of the voting audience.[68]

While opinions among experts are divided in the U.S., one survey indicated that 9 in 10 Americans want some form of the right to be forgotten.[69] The consumer rights organization Consumer Watchdog has filed a complaint with the Federal Trade Commission for Americans to obtain the right as well.[70]

Draft European Data Protection Regulation

The 2012 draft European Data Protection Regulation Article 17 details the "right to be forgotten and to erasure".[71] Under Article 17 individuals to whom the data appertains are granted the right to "obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child or where the data is no longer necessary for the purpose it was collected for, the subject withdraws consent, the storage period has expired, the data subject objects to the processing of personal data or the processing of data does not comply with other regulation".[71]

The EU defines "data controllers" as "people or bodies that collect and manage personal data".[72] The EU General Data Protection Regulation requires data controllers who have been informed that an individual has requested the deletion of any links to or copies of information must "take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorized a third party publication of personal data, the controller shall be considered responsible for that publication".[71] In the situation that a data controller does not take all reasonable steps then they will be fined heavily.[73]

The European Parliament was once "expected to adopt the proposals in first reading in the April 2013 Plenary session".[74] The right to be forgotten was replaced by a more limited right to erasure in the version of the GDPR adopted by the European Parliament in March 2014.[75][76] Article 17 provides that the data subject has the right to request erasure of personal data related to him on any one of a number of grounds including non-compliance with article 6.1 (lawfulness) that includes a case (f) where the legitimate interests of the controller is overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data (see also Costeja).[77][78]

The European Union is a highly influential group of states, and this movement towards the right to be forgotten in the EU is a step towards its global recognition as a right. To support this, in 2012 the Obama Administration released a "Privacy Bill of Rights" to protect consumers online, and while this is not quite the strength of the EU law, it is a step towards recognition of the right to be forgotten.[79]

Criticism

Major criticisms stem from the idea that the right to be forgotten would restrict the right to freedom of speech.[80][81][82] Many nations, and the United States in particular (with the First Amendment to the United States Constitution), have very strong domestic freedom of speech law, which would be challenging to reconcile with the right to be forgotten.[83] Some academics see that only a limited form of the right to be forgotten would be reconcilable with US constitutional law; the right of an individual to delete data that he or she has personally submitted.[65][66][84] In this limited form of the right individuals could not have material removed that has been uploaded by others, as demanding the removal of information could constitute censorship and a reduction in the freedom of expression in many countries.[85] Sandra Coliver of the Open Society Justice Initiative argues that not all rights must be compatible and this conflict between the two rights is not detrimental to the survival of either.[86]

The Proposed Data Protection Regulation is written broadly and this has caused concern.[4] It has attracted criticism that its enactment would require data controlling companies to go to great lengths to identify third parties with the information and remove it.[87] The Proposed Regulation has also attracted criticism due to the fact that this could produce a censoring effect in that companies, such as Facebook or Google, will wish to not be fined under the act, and will therefore be likely to delete wholesale information rather than facing the fine, which could produce a "serious chilling effect."[87] In addition to this, there are concerns about the requirement to take down information that others have posted about an individual; the definition of personal data in Article 4(2) includes "any information relating to" the individual.[88] This, critics have claimed, would require companies to take down any information relating to an individual, regardless of its source, which would amount to censorship, and result in the big data companies eradicating a lot of data to comply with this.[89] Such removal can impact the accuracy and ability of businesses and individuals to carry out business intelligence, particularly due diligence to comply with antibribery, anticorruption, and know your customer laws.[90] The right to be forgotten was invoked to remove from Google searches 120 reports about company directors published by Dato Capital, a Spanish company which compiles such reports about private company directors, consisting entirely of information they are required by law to disclose;[90][91] Fortune magazine examined the 64 reports relating to UK directorships, finding that in 27 (42%) the director was the only person named, in the remaining only the director and co-directors were named, and 23 (36%) involve directorships started since 2012.[91]

Other criticism revolves around the principle of accountability.[92]

There are concerns that the Proposed Data Protection Act will result in Google and other Internet search engines not producing neutral search results, but rather producing biased and patchy results, and compromising the integrity of Internet-based information.[87] To balance out this criticism, the Proposed Data Protection Regulation includes an exception "for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression."[71] Article 80 upholds freedom of speech, and while not lessening obligations on data providers and social media sites, nevertheless due to the wide meaning of "journalistic purposes" allows more autonomy and reduces the amount of information that is necessary to be removed.[3]:9 When Google agreed to implement the ruling, European Commission Vice-President Viviane Reding said, "The Court also made clear that journalistic work must not be touched; it is to be protected."[93] However, Google was criticized for taking down (under the Costeja precedent) a BBC News blog post about Stan O'Neal by economics editor Robert Peston (eventually, Peston reported that his blog post has remained findable in Google after all).[94][95] Despite these criticisms and Google’s action, the company’s CEO, Larry Page worries that the ruling will be “used by other governments that aren’t as forward and progressive as Europe to do bad things", though has since distanced himself from that position.[96] For example, pianist Dejan Lazic cited the Right To Be Forgotten in trying to remove a negative review about his performance from The Washington Post. He claimed that the critique was "defamatory, mean-spirited, optionated, offensive and simply irrelevant for the arts".[97][98] and the St. Lawrence parish of the Roman Catholic church in Kutno, Poland asked Google to remove the Polish Wikipedia page about it,[99] without any allegations mentioned therein as of that date.

Index on Censorship claimed that the Costeja ruling "allows individuals to complain to search engines about information they do not like with no legal oversight. This is akin to marching into a library and forcing it to pulp books. Although the ruling is intended for private individuals it opens the door to anyone who wants to whitewash their personal history....The Court's decision is a retrograde move that misunderstands the role and responsibility of search engines and the wider internet. It should send chills down the spine of everyone in the European Union who believes in the crucial importance of free expression and freedom of information."[100]

In 2014, the Gerry Hutch page on the English Wikipedia was among the first Wikipedia pages to be removed by several search engines' query results in the European Union.[101][102] The Daily Telegraph said, on 6 Aug 2014, that Wikipedia co-founder Jimmy Wales "described the EU's Right to be Forgotten as deeply immoral, as the organisation that operates the online encyclopedia warned the ruling will result in an internet riddled with memory holes".[103] Other commentators have disagreed with Wales, pointing to problems such as Google including links to revenge porn sites in its search results,[6][104] and have accused Google of orchestrating a publicity campaign to escape the burdensome obligation to comply with the law.[27][29] Julia Powles, a law and technology researcher at the University of Cambridge, made a rebuttal to Wales' and the Wikimedia Foundation concerns in an editorial published by Guardian, opining that "There is a public sphere of memory and truth, and there is a private one...Without the freedom to be private, we have precious little freedom at all."[105]

In response to the criticism, the EU has released a factsheet to address what it considers myths about the right to be forgotten.[106]

Research

Conceptual Overview of Oblivion.

Security researchers from CISPA, Saarland University[107] and the University of Auckland[108] proposed a framework, called Oblivion,[109] to support the automation of the right to be forgotten in a scalable, provable and privacy-preserving manner. Oblivion is a program that helps to ”automate” the process of attempting to verify someone’s personal information that could be found in a Google search result.”[110] Google gets so many take-down requests at such a high volume, so Oblivion is able to help with this problem. Researchers and authors behind Oblivion say that “it is essential to develop techniques that at least partly automate this process and are scalable to internet size.”[110] Oblivion helps the humans that operate the forms at Google ensure that ill-intending users cannot “blacklist links to internet sources that do not affect them.”[110] For example, tests have proven that Oblivion handles requests at a rate of 278 per second.[110] The software allows Google, the government, and the user to work together to get content removed quickly and for just cause. To ensure that the program works quickly, is secure for its users and is impervious to fake take-down requests, Oblivion uses a three-part system.

In the first part, Oblivion requires a user to submit identification about themselves - not limited to “name, age, and nationality.”[110] Oblivion then enables a user to automatically find and tag his or her disseminated personal information using natural language processing and image recognition techniques and file a request in a privacy-preserving manner. Oblivion will scan the article for attributes that match information that has been submitted by the user. Second, Oblivion provides indexing systems with an automated and provable eligibility mechanism, asserting that the author of a request is indeed affected by an online resource. The author of a request is then issued a “ownership token”[110] that confirms the articles they submitted for evaluation include sensitive personal information. The automated eligibility proof ensures censorship-resistance so that only legitimately affected individuals can request the removal of corresponding links from search results. In the third and last phase, this “ownership token” is submitted to Google, accompanied by the user’s concerns as to what information should be deleted.[110] Google’s staff is then allowed to decide for themselves if they want to delete this information or not - but thanks to Oblivion, they know that the information in question is valid.

Researchers with Oblivion, however, have noted that it comes with some limitations. The software is lacking a human element, therefore it cannot decide on its own “whether or not a piece of information is public interest and should therefore not be removed from Google search results.”[110] Researchers have conducted comprehensive evaluations, showing that Oblivion is suitable for large-scale deployment once it is fine-tuned.

See also

References

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  2. ↑ "El derecho al olvido en Internet se deberá aplicar también en la Capital Federal". lanacion.com.ar.
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