RIGHT TO BE FORGOTTEN?
It has been almost a year since the European Court of Justice ruled that Google must respond to take-down requests by users alleging that search results on Google violate their right to privacy, a case popularly known as the Right to be Forgotten (RTBF) case.
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. 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. 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, 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.
The case is one of the many instances where the European Court has upheld the right to privacy of an individual, and while the ruling is an important win for individual rights, the judgment raises concerns about protection of free speech and expression on the internet.
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 pre-existing 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 oblivion). It was officially recognized in French Law in 2010. Views on the right to be forgotten differ greatly between America and EU countries. The term “right to be forgotten” is a relatively new idea, though on May 30, 2010 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, which is discussed in detail under the Spain subheading.
In 1995 the European Union adopted the European Data Protection Directive (Directive 95/46EC) to regulate the processing of personal data.
This is now considered a component of human rights law. 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.
The ‘right to know’ is central to the right to freedom of speech and expression and one can properly exercise his right to freedom of speech and expression only when he has access to non-partisan information.
Google deals with such take-down requests on an ad-hoc basis; a large team of lawyers at Google determine whether the take-down requests are to be granted or refused and it is only when dealing with the complicated requests that outside experts are called. In all probability, the request would be granted by Google in this case.
Further, it raises the issue whether “public embarrassment” should be a ground to allow censorship of content on the internet? Truth has always survived as a defence in cases where defamation has been alleged and if newspapers are allowed this particular defence, why should internet be regulated differently? Another concern which arises is that the ruling which at present is restricted to search results by search engines, may in future be extended to websites which host such content, thereby directly violating free speech on the internet.
Under copyright laws of various countries, any content which is said to be infringing some one’s copyright may be removed from the internet. The United States enacted the Digital Millennium Copyright Act (DMCA) which came into effect in 2000 and aims at preventing copyright infringement online. For instance, if a person uploads or shares a photograph on a website (the copyright over which is owned by someone else), the copyright-holder can request take-down of such content from the website; videos on YouTube which infringe someone’s copyright may be removed under similar requests.
In case a person finds embarrassing images of himself on the internet, he may resort to copyright laws to have the content removed from the internet instead of resorting to the RTBF law. However, one of the legal loopholes in this case is that of establishing ownership of copyright over the photographs where such photographs are not selfies.
It is for these very reasons that we need to carefully consider the impact that RTBF is having on freedom of speech online and ensure that it does not censor content which would otherwise inform public opinion.