The Right to be Forgotten: Memories May be Beautiful?

The famous song says memories may be beautiful etc, and whats too painful to remember we simply choose to forget - however - not so the Internet?

In today's world it is a fact that a person is known to the Internet within seconds, if not minutes, after they are born. "Known" because they will have had a baby photo posted to Facebook or an image and name shared on Twitter or Instagram by proud dads and relatives and, from that point on, have started building a data bank on search engines, like Google, thus  embarking on a journey where much of their past, present and future will become part of cyberspace, able to be viewed by all.

In this context of the all embracing collection of data that the Internet has become, the recent case decided in the European Court of Justice (the ECJ) dealing with Google and what is known as the "right to be forgotten", enabling citizens of the European Union (the EU) to request search engines operating in Europe to delete, de-identify or not show, certain materials indexed by those search engines has attracted much attention.

Background

As a concept, the "right to be forgotten" is practiced in the EU although Argentina has in recent years also adopted the concept. It arises from what is described as the want of many individuals to:

The so-called right is part of an ongoing reform of European data protection laws dating back to 1995 and as The Register reports new Data Protection Regulations:

The advocacy for the right has caused considerable controversy around the practicality of establishing a "right to be forgotten" to the status of an international human right with respect to access to information. The controversy is due in part to the vagueness of current legal rulings attempting to implement such a right.

The key concerns have been about its impact on the right to "freedom of expression" and its interaction with the "right to privacy". Thus, on the one hand, whether creating a "right to be forgotten" would reduce or inhibit the quality of the Internet through censorship and provide a possible way of legitimately rewriting history, on the other hand, the opposing concerns of references to petty crimes, misdemeanours or financial transgressions committed many years ago being indefinitely allowed to remain a prominent part of a person's Google footprint.

The Recent European Court of Justice Case

In May 2014, the European Court of Justice (the ECJ) made a decision by which it ordered Google to delete links to outdated information about financial matters concerning a Spanish national after the Spanish national argued that the information was no longer relevant or representative
of him. This decision has since created a large amount of media speculation and legal discussion around whether the ECJ had created an absolute “right to be forgotten” - at least in the EU.

The Register however reports, that according to Europe’s caretaker Commissioner for Justice, Ms Martine Reicherts:

Ms Reicharts goes on to argue that the position is that each case will have to be assessed on its own merits and that factors, including 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, will all need to be taken into account in exercising the right to be forgotten.This view, however, was criticised as it was said it did not address the concerns of many civil liberties groups who maintain it should be law courts, and not large private companies like Google, Yahoo and Microsoft, making the case by case decisions referred to by the Commissioner.

How Does the Right to be Forgotten Play in Australia?

In an article published in the DLA Pipers Privacy Update for July 2014 the author points out that:

APP 13 is said to provide a right to request that personal information held by an organisation that is "inaccurate, out of date, incomplete, irrelevant or misleading" be corrected.

While APP 10 provides that organisations have a separate obligation to take reasonable steps to ensure that any personal information that they use and/or disclose is "accurate, up to date, complete and relevant".

The process, however, is described as "correction" which means that Australians have the right to request that any irrelevant or out of date personal information held by an organisation be corrected to more accurately reflect the individual's current situation. However, organisations have the ability to refuse a request or consider how best to effect the request.

Thus, Australian organisations are, as DLA Pipers point out, already required to assess and form a view on:

• the meaning of the terms "irrelevant" and "out of date" (noting that the Privacy Commissioner's guidelines provide some direction on these terms);
• whether the personal information that the organisation holds is in fact inaccurate or out of date; and
• how to correct such information (that is, whether to amend or, perhaps, delete the personal information).

Further, a journalism exception exists under the Privacy Act 1988 (Cth) permitting media organisations to act or engage in practices ordinarily contravening the Act. Such exception would have protected Australian media in the case of the Spanish national referred to above, and enabled it to refuse to correct or delete a news article even where personal information contained in the article may, with time, have become irrelevant or dated.

The Key Distinction

One might argue that the a structure for seeking correction is the same as a right to have material forgotten, in effect at least, if not in the actual strength of the law that follows from the concept. But it would seem that the seeking of correction in a framework that still gives organisations a great deal of power over what they actually correct, hide or remove is still short of the more robust privacy protection offered by the concept of a "right to be forgotten" - a right that can be acted upon and enforced by a Court.

Further, as the DLA Piper article points out, it is not yet even certain that APP 13 applies to organisations such as Google who merely index other pages over which they have no control - a matter yet to be tested in case law (although see further, Trkulja's Case which while not about APP 13 was about a Melbourne man whose photo was published alongside that of gangland figures including Tony Mokbel in a story about an unresolved restaurant shooting and who successfully sued Google in what was seen as a landmark decision).

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

• EU justice chief blasts Google on 'right to be forgotten' (The Register - 19 August 2014)
• The Google Tornado: Just How Ground-Breaking is the "Right to be Forgotten" (DLA Pipers Update - 24 July 2014)
• Google Loses Lawsuit in Australia Over Defamatory Search Results (Slate Website)