right to be forgotten [English]

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Syndetic Relationships

InterPARES Definition

n. ~ An individual's claim of privilege to control his or her personal information by demanding that access to such information must be restricted unless there are particular reasons justified by a preponderant interest of the public, including freedom of expression and freedom of information.

General Notes

The European Court of Justice limits this right to information "that is inaccurate, inadequate, irrelevant, or excessive in relation to data processing" (EU Commission, 2014, 2).

Citations

  • Bernal 2014 (†430 201): The right to delete should not be seen as akin to the ‘right to be forgotten’. . . . What is being suggested is not about rewriting history or about censorship: it is about placing more effective, better controlled and realisable limitations on the government or commercial holding of more data than is needed. To describe it as a ‘right to be forgotten’ could be seen as misleading or disingenuous; it is not about forgetting, but about control and autonomy. . . . A right to be forgotten can be seen as a rejection of society and something ultimately undemocratic, whereas a right to delete, properly set out and balanced with other rights, can be something precisely the opposite and act as a support and protection for individuals in their interaction with society. (†550)
  • EU Factsheet 2014 (†431 p. 2): Individuals have the right - under certain conditions - to ask search engines to remove links with personal information about them. This applies where the information is inaccurate, inadequate, irrelevant or excessive for the purposes of the data processing (para 93 of the ruling). . . . A case-by-case assessment is needed considering the type of information in question, its sensitivity for the individual's private life and the interest of the public in having access to that information. The role the person requesting the deletion plays in public life might also be relevant. (†554)
  • Fleischer 2011 (†425 ): [Note: This citation pulls a few salient points from a much longer article.] In privacy circles, everybody's talking about the Right to be Forgotten. The European Commission has even proposed that the "right to be forgotten" should be written into the up-coming revision of the Privacy Directive. ¶ Here's my simple attempt to remember the different concepts some people want to forget. . . . 1) If I post something online, should I have the right to delete it again? I think most of us agree with this, as the simplest, least controversial case. . . . 2) If I post something, and someone else copies it and re-posts it on their own site, do I have the right to delete it? . . . 3) If someone else posts something about me, should I have a right to delete it? . . . 4) The Internet platforms that are used to host and transmit information all collect traces, some of which are PII, or partially PII. Should such platforms be under an obligation to delete or anonymize those traces after a certain period of time? and if so, after how long? and for what reasons can such traces be retained and processed? . . . 5) Should the Internet just learn to "forget"? Quite apart from the topics above, should content on the Internet just auto-expire? . . . (†545)
  • Fleischer 2012 (†426 ): [Note: These citations are from a much longer article.] The "Right to be Forgotten" is a very successful political slogan. Like all successful political slogans, it is like a Rorschach test. People can see in it what they want. The debate would sound quite different if the slogan were actually something more descriptive, for example, the "right to delete". The European Commission has now proposed to make the "right to be forgotten" into a law. It's a big step to turn a vague political slogan into a law. ¶ What is the "right to be forgotten"? There is a spectrum of views. On one end of the spectrum, the "right to be forgotten" is simply viewed as a re-branding of long-standing data protection principles, in particular: the rights to access and rectify one's own personal data, the right to oppose processing of one's personal data in the absence of legitimate purposes, the principle of data minimization. On this end of the spectrum, people think that the "right to be forgotten" is nothing new; at most, it is simply an attempt to apply long-standing data protection principles to the new worlds of the Internet and modern technologies. I'm firmly in this school of thought. ¶ On the other end of the spectrum, the "right to be forgotten" is viewed more sweepingly as a new right to delete information about oneself, even if published by a third-party, even if the publication was legitimate and the content was true. This school of thought believes that people should have the right to force third-parties to delete content about them (photos, blogs, anything) that violates their sense of privacy, which in practice usually means their online reputations. (†546)
  • Google v. AEPD 2014 (†423 91): According to Mr Costeja González and the Spanish and Italian Governments, the data subject may oppose the indexing by a search engine of personal data relating to him where their dissemination through the search engine is prejudicial to him and his fundamental rights to the protection of those data and to privacy – which encompass the ‘right to be forgotten’ – override the legitimate interests of the operator of the search engine and the general interest in freedom of information. (†541)
  • Google v. AEPD 2014 (†423 100): Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question. (†553)
  • Google v. AEPD Opinion 2013 (†424 3): 3. Regarding the scope of the right of erasure and/or the right to object, in relation to the "derecho al olvido" (the "right to be forgotten"), the following question is asked: ¶ 3.1. must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by Article 14(a), of [the Directive], extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?’ (†542)
  • Google v. AEPD Opinion 2013 (†424 110): For the sake of completeness it is useful to recall that the Commission Proposal for a General Data Protection Regulation provides in its Article 17 for a right to be forgotten. However, the proposal seems have met with considerable opposition, and it does not purport to represent a codification of existing law, but an important legal innovation. (†543)
  • Google v. AEPD Opinion 2013 (†424 127-128): 127. The European Court of Human Rights held in the Aleksey Ovchinnikov case (91) that ‘in certain circumstances a restriction on reproducing information that has already entered the public domain may be justified, for example to prevent further airing of the details of an individual’s private life which do not come within the scope of any political or public debate on a matter of general importance’. The fundamental right to protection of private life can thus in principle be invoked even if the information concerned is already in the public domain. ¶ 128. However, a data subject’s right to protection of his private life must be balanced with other fundamental rights, especially with freedom of expression and freedom of information. (†552)
  • Google v. AEPD Opinion 2013 (†424 133): The particularly complex and difficult constellation of fundamental rights that this case presents prevents justification for reinforcing the data subjects’ legal position under the Directive, and imbuing it with a right to be forgotten. This would entail sacrificing pivotal rights such as freedom of expression and information. I would also discourage the Court from concluding that these conflicting interests could satisfactorily be balanced in individual cases on a case‑by‑case basis, with the judgment to be left to the internet search engine service provider. Such ‘notice and take down procedures’, if required by the Court, are likely either to lead to the automatic withdrawal of links to any objected contents or to an unmanageable number of requests handled by the most popular and important internet search engine service providers. (95) In this context it is necessary to recall that ‘notice and take down procedures’ that appear in the ecommerce Directive 2000/31 relate to unlawful content, but in the context of the case at hand we are faced with a request for suppressing legitimate and legal information that has entered the public sphere. (†544)
  • Gutwirth 2011 (†429 p. 90): In a much more developed state is the so-called "right to be forgotten," also known as the right to oblivion, "droit à l’oubli” (French) or “diritto al’oblio” (Italian). This legal figure has been formulated in the French and Italian law (although implicitly) and jurisprudence. Defined as “the right to silence on past events in life that are no longer occurring,” the debate around this right has been recently resumed in Europe with the question of whether internet users should be entitled to erase personal information stored in the internet. Such question becomes particularly pressing when one realizes that the internet tends to record everything and forget nothing. In practical terms, the issue of the right to be forgotten revolved around the questions of granting (or not) to internet users the possibility of deleting personal data (such as images, texts, opinions, official documents, certificates and any other type of personal data describing past behaviours and actions, etc.) from the list of results promoted by search engines, websites, social networks, blogs, etc. (†549)
  • Kanter 2014 (†416 ): The highest court in the European Union decided on Tuesday that Google must, in some cases, grant users of its search engine a so-called right to be forgotten that includes deletion of links to embarrassing legal records. ¶ The judgment on Tuesday was based on a data protection law from 1995 that provides limited rights to object to the processing of personal information and to demand its erasure in certain situations. ¶ The court decided that there were cases in which a company like Google should allow online users to be “forgotten” after a certain time by erasing links to web pages “unless there are particular reasons, such as the role played by the data subject in public life, justifying a preponderant interest of the public.” (†528)
  • Möller 2014 (†427 ): The right to ask for a removal from search results, according to the ECJ, applies to data that is inaccurate, inadequate, irrelevant or excessive in relation to the purposes of the processing, that is not kept up to date, or that is kept for longer than is necessary. Exceptions apply only for data that is kept for historical, statistical or scientific purposes. ¶ If a ‘right to be forgotten’, however, would allow any individual to demand the removal of any information about him, even if it originates from third parties such as newspapers, this might indeed lead to undue censorship and restrictions of the right to freedom of expression on the grounds of (pretended) privacy and data protection concerns. (†547)
  • Rosen 2012 (†428 ): Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizes le droit à l’oubli–or the “right of oblivion”–a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page. (†548)
  • Streitfeld 2014 (†420 ): Europe’s highest court said on Tuesday that people had the right to influence what the world could learn about them through online searches, a ruling that rejected long-established notions about the free flow of information on the Internet. ¶ A search engine like Google should allow online users to be “forgotten” after a certain time by erasing links to web pages unless there are “particular reasons” not to, the European Court of Justice in Luxembourg said. ¶ “The principle that you have a right to be forgotten is a laudable one, but it was never intended to be a way for people to rewrite history,” said Emma Carr, the organization’s acting director. (†531)
  • Taylor 2013 (†760 p. 37): Although the phrase ‘right to be forgotten’ was first pioneered in Mayer-Schönberger’s (2009:171–175) book, the right as incorporated in the draft Regulation differs from the expiry dates on information that he suggested. It is important to note that while the droit à l’oubli (right to oblivion) is an aspect of personality rights in civil law systems and has influenced the notion of the right to be forgotten, the contents of the two rights is not identical (Siry & Schmitz 2012:4; Weber 2011:121–122). (†1921)
  • Taylor 2013 (†760 p. 46): The right to be forgotten in Article 17, which requires a data controller to erase the data subject’s personal information upon request, does not apply when retention of the data is necessary for historical, statistical and scientific research purposes in accordance with Article 83, consistent with Recital 53 (Reding 2012:52). Yet the right to rectification in Article 16 (the data subject’s right to have data corrected) is expressed as absolute, without exceptions for research or any other purposes (Reding 2012:51). This could allow data subjects to require corrections to archival records after they have been arranged and described, with profound practical and theoretical consequences: for example, the principles of provenance and the archival bond, distinguishing features of archival practice, would be fatally undermined. (†1920)
  • Tippman and Powles 2015 (†729 ): Less than 5% of nearly 220,000 individual requests made to Google to selectively remove links to online information concern criminals, politicians and high-profile public figures, the Guardian has learned, with more than 95% of requests coming from everyday members of the public. ¶ The Guardian has discovered new data hidden in source code on Google’s own transparency report that indicates the scale and flavour of the types of requests being dealt with by Google – information it has always refused to make public. The data covers more than three-quarters of all requests to date. ¶ Previously, more emphasis has been placed on selective information concerning the more sensational examples of so-called right to be forgotten requests released by Google and reported by some of the media, which have largely ignored the majority of requests made by citizens concerned with protecting their personal privacy. ¶ These include a woman whose name appeared in prominent news articles after her husband died, another seeking removal of her address, and an individual who contracted HIV a decade ago. (†1672)
  • Wikipedia (†387 s.v. right to be forgotten): A concept that has been discussed and put into practice in the European Union (EU) and in Argentina since 2006.[New York Times, lanacion.com] The issue has arisen from the desires of some individuals to "determine the development of his life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past."[Matelero, 2013] There has been considerable 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.[Fleischer, 2011] 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,[Mayes, 2014] and opposing concerns about problems such as revenge porn sites appearing in Google search 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 Google footprint.[Arthur, 2014] (†1023)