Category Archives: Right to be Forgotten

The Right to Be Forgotten – An Explanation

Ed. Note.: This post, by Ashwin Murthy, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

The right to be forgotten is the right of an individual to request search engines to take down certain results relating to the individual, such as links to personal information if that information is inadequate, irrelevant or untrue. For example, if a person’s name is searched on Google and certain information appears relating to that person, the person can request Google to remove that information from the search results. This has its largest application in crime and non-consensual pornography (revenge porn or the distribution of sexually explicit material depicting a person without their consent). If X committed a petty crime and a person searching X’s name finds this petty crime, it leads to an obvious negative impact to X, in terms of job prospects as well as general social stigmatisation. X can ask the providers of the search engine to remove this result, claiming his right to be forgotten. The right is not necessarily an absolute right – in its current stage of discussion it merely applies to information that is inadequate, irrelevant or untrue and not any and all information relating to the person. Further there lies a distinction between the right to privacy and the right to be forgotten – the right to privacy is of information not available to the public while the right to be forgotten is removal of information already available publicly.

            Proponents of the right to be forgotten claim that it is a person’s right to have such outdated or immaterial information deleted from the Internet, or at least from the results of search engines. Photographs, comments, links shared – these are all things that people post in their youth (and sometimes at a not so young age) without a second thought. These people should have the right to delete such content from the Internet to protect their right to privacy and consequentially their right to be forgotten, protecting them from unnecessary backlash at rather innocuous actions. For example, a Canadian doctor was banned from the United States when an internet search showed that he experimented with LSD at one point of time in his life. With the right to be forgotten he can erase such pages from the results of the search engine. Victims of revenge and involuntary porn would have an easy mechanism to ensure that such objects are removed from the internet, a task that is difficult to achieve without such a right.  Critics however claim that this right to be forgotten is a substantial setback to the freedom of information and free speech. Any information spread on the Internet would have the potential to be taken down due to legitimate or seemingly legitimate claims of the right to be forgotten, regardless of the qualitative value of the information. Further, the right to be forgotten would impede with a person’s right to know. The easiest way to discover the background of a person is to Google them. This is especially relevant when employing someone or entering into an agreement of trust. If a person is looking for a security guard and a Google search shows that the applicant for the job is or was a thief, then this information on the Internet is of great use to this person hiring such a man – information that would otherwise not be available to the person. Removing this information denies the person their right to know and access this information. Also, implementation of such a right is technically difficult, forcing a complex algorithm to be developed to correctly identify what sites and results should and should not be removed in the event of a claim of right to be forgotten, especially considering the permanency of content on the Internet with the reposting and reproduction of content that occurs today. Locating every site to remove the content is technologically difficult.

            This right has its premier legal backing in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, a decision by the Court of Justice of the European Union (CJEU). In the case, the Spanish citizen Gonzalez wished to remove a Google search result of an auction notice of his repossessed house that was fully resolved with and thus irrelevant. The Court held that the search engine (Google) must consider requests of removal of links and results appearing from a search of the requestor’s name under the grounds of the search result being irrelevant, outdated or excessive. The Court thus clarified that while people do possess this right to be forgotten, it is not absolute and must be balanced against other fundamental rights, including the freedom of expression. Thus the CJEU stated that assessment on the same must be decided on a case-to-case manner. This is line with an EU Regulation, the General Data Protection Regulation (GDPR), in providing only a limited form of the right to be forgotten. Originally this only applied to European countries – Google delisted search results only from European domains (google.fr, google.de, etc). Thus if a European citizen requested removal of a result, it would be removed from all European domains but nowhere else. CNIL, France’s data protection regulator, went to the length of fining Google for not removing the requested search results from all domains of Google worldwide, not just the French domain. While Google is fighting this case in France’s highest court, this is a symbol of a slow recognition of a far more expanded form of the right to be forgotten, applicable to search results worldwide.

            The right to be forgotten is not alien to India either – the first case of the same was a request in 2014 to the site Medianama.com to remove certain content, however this request was soon dropped. In 2016, a man raised a request before the Delhi High Court for a valid request for removal of his personal information from Google search results of a marital dispute. The Court recognized this claim and sent an inquiry to Google, to be replied to by September 19th. However, there is currently no legal framework present in India for the same nor does the landmark EU judgement apply in India.

            The right to be forgotten remains a nascent right, not fully developed or fleshed out. There are debates as to the pros and cons of such a right, and the extent to which such a right can and should be granted. However there is a clear rise as to its relevance in the technological and legal fields and will undoubtedly crystallise into a comprehensive right in the near future.

For further reading:

  1. The Audacious ‘Right to Be Forgotten’, Kovey Coles, CIS-India
  2. The Right to Be Forgotten, EPIC
  3. Debate: Should The U.S. Adopt The ‘Right To Be Forgotten’ Online? (audio), NPR
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The Right to Be Forgotten – An Explanation

(Image Source: https://flic.kr/p/9RovZB)

This is the first in a two-part post on the Right to be Forgotten. This post is part of our 101 series of posts, which seek to explain the issue at hand, and the next post shall address the issue and the debate surrounding it in more detail.

In 2010, a Spanish citizen filed a complaint against a Spanish newspaper, Google Spain and Google Inc. with the national Data Protection Agency. The complaint objected to an auctioned notice of his repossessed home that kept coming up on Google’s search results.  The proceedings against the petitioner had been fully resolved and he claimed the reference to the proceedings on Google to be entirely redundant and a violation of his privacy rights. The Spanish court referred the case to the Court of Justice of the European Union.  Continue reading The Right to Be Forgotten – An Explanation