Privacy Part 2: The Right to Be Forgotten

February 24

The Court of Justice of the European Union made big waves last May when it ruled against Google on a claim brought by a Spanish citizen asserting a right to remove two news articles that appeared in Google search results when he searched for his own name. The case, now known as the case that recognized the “right to be forgotten,” has come to the forefront of discussions of online privacy. In today’s class, we’ll explore the “right to be forgotten,” how it applies in Europe, whether it could ever come to the United States, and how international companies address competing national balances over privacy and free speech.

We’ll also spend part of this day describing the final project for the class, and discuss how to pick a good community and issue to study for the project.

Our guest this week is Berkman staffer Adam Holland, who oversees the operations of several projects, including Chilling Effects, which tracks legal threats against online speech.

Readings

• Jeffery Rosen, "The Right to Be Forgotten," 64 Stanford Law Review Online 88 (February 13, 2012)

• Eric Posner, "We All Have the Right to Be Forgotten," Slate, May 14, 2014

• Jonathan Zittrain, "Don't Force Google to 'Forget'," New York Times, May 14, 2014

• Gail Sullivan, "'Right to be Forgotten' gets real as Google wipes stories from search results," July 3, 2014

• Jeffery Toobin, "The Solace of Oblivion," The New Yorker, September 29, 2014

Optional Readings

• Google Spain SL v. Agencia Española de Protección de Datos (an abridged version of the ECJ decision from May 2014 - built on the Berkman Center's own H2O Platform for online textbooks)

• Aleksandra Kuczerawy and Jef Ausloos, European Union and Google Spain (from the brand new report from the Global Network of Internet and Society centers)

Class Discussion

Please remember to sign your postings by adding four tildes (~~~~) to the end of your contribution. This will automatically add your username and the date/time of your post, like so: Andy 15:12, 7 November 2013 (EST)

Andy, could you please look over the microphones in the classroom? I had a really hard time hearing what was said in class last week. There was no problem with hearing the people closest to the camera, but those further away (including Mr. Faris) were really difficult to hear. :) JosefinS (talk) 06:38, 19 February 2015 (EST)

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Thanks for the heads up, Josefin. I think we were having some problems with Rob's mic, and I'll tell folks in class to speak up to make sure the table mics pick up the sound. Andy (talk) 08:09, 19 February 2015 (EST)

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I have a hard time deciding wether I like the ”right to be forgotten law” or not. It can be a good thing when it comes to giving people a second chance in life or preventing false rumors from destroing peoples lives. But it could at the same time undermine the freedom of speech, which is a very important important element in a democracy.

Also, three reasons for search results to be removed are that they are ”inadequate, irrelevant or no longer relevant”, which is very subjective. Who should have the power to decide what is irrelevant and what is important information to the public? And what if information that is irrelevant today unexpectedly happens to be relevant in a few years?

I was surprised to know that ”Google has fielded about a hundred and twenty thousand requests for deletions and granted roughly half of them.”, because I haven´t heard about this law since last spring and didn´t reflect upon the fact that a lot of people could´ve used this ”right to be forgotten”. I wonder what kind of people that use it, why they do it, etc. Is it to be able to move on from previous mistakes? Is it to hide things about themselves to be able to defraud others? Whatever you think is right (to implement this right or not) there are several approaches on this matter that are relevant. It is important that we discuss these issues now, when more and more information can be found on the Internet. JosefinS (talk) 14:12, 22 February 2015 (EST)

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I’m sure I’m not the only one who has embarrassing photos on Facebook and wished to delete them. Some of them were posted by myself and later realized how idiotic they were; some were then copied from mine and reposted by my friends; and ofcourse, some were taken by my friends of me doing embarrassing things. This is precisely what we fear, and the sensitive issue about privacy in the internet world.

Sometimes I wonder what exactly constitutes the internet? Freedom to post everything and share everything without restrictions? But the other issue is the problem about privacy. It is hard to have a completely free society on the internet if there are restrictions here and there. So where should privacy start? Should it be based upon the existing privacy laws in real life? I guess since we do live in the physical world, some of it have to derive from the real world. “The right to be forgotten” is precisely that. It governs the areas in Europe to have those rights. (Ref 1 and 2) From paragraph one I mentioned the three things that were questionable. Under the right to be forgotten law, Europeans could demand to have their data deleted regardless if it was posted by them, redistributed, or taken by someone else.

Google tried a different approach of allowing users to comment on searches of you. (ref 3) but against such tough regulations on privacy, I’m not surprised that Google abandoned it soon after. I believe they do not have aligned interests with regulators. Search engines should be pro- openness, pro-free data, anti-regulations. But such is difficult when the internet is actually possible to be governed by geographical location (as we learned previously). “The right to be forgotten” has really forced Google and other search engines to remove certain results from some searches. (ref 4) It goes into the territory of whether they would be reliable for keeping certain data online. I think Toobin’s story proved a very valid point. The way Nikki Catsouras was decapitated was gruesome, and the employees of the California Highway Patrol should not have spread the photos. (ref 5) It should be kept professional. When issues like this occur, it really brings us back to the privacy issue. Is it better to have an open internet where everything is available? Or is it better to control the internet with certain privacy settings? It seems that this topic would continue for a while.

I think “the right to be forgotten” comes in handy when it needs to be used, but also restricts true freedom of sharing data. When the internet first started and everyone thought it would not be under the jurisdiction of governments were very wrong. It was not only geographically controlled, not only digitally but physically (wires and cables), it was also controlled by means of “rights”, such as privacy. I could see issues with and without “the Right to Be Forgotten”. Both sides of the argument seems valid. Yet I do think the digital world reflects the physical one more than the other way round. So for the time being, I believe it benefits society more with these privacy settings than it harms us.

References:

Ref 1 - http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten

Ref 2 - http://www.slate.com/articles/news_and_politics/view_from_chicago/2014/05/the_european_right_to_be_forgotten_is_just_what_the_internet_needs.single.html

Ref 3 - http://www.nytimes.com/2014/05/15/opinion/dont-force-google-to-forget.html?_r=0

Ref 4 - http://www.washingtonpost.com/news/morning-mix/wp/2014/07/03/google-erases-unflattering-news-stories-because-of-right-to-be-forgotten-is-this-like-burning-books-in-a-library/

Ref 5 - http://www.newyorker.com/magazine/2014/09/29/solace-oblivion

Caelum (talk) 21:40, 22 February 2015 (EST)

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The discussion about the balance between "the right to be forgotten" and free speech is another difficult perspective to the privacy debate and reiterates that it's extremely hard to define and, therefore, to make boundaries. I appreciate how the articles provided a variety of perspectives both for and against the right to be forgotten which allowed for some valuable insights. It seems as though coming up with an overall policy to allow people the right to be forgotten is practically impossible because of the variety of situations which cause people to want to practice that principle. It seems that the main argument for the right to be forgotten is that, "we didn't use to have immediate access to people's pasts and things were just fine back then, why do we have to change it?". The important fact they're leaving out is that the playing field is completely different now so the old rules won't work. We're dealing with a completely different situation, in that, even if there were regulation, things are STILL so much easier to find and unless the Internet is completely destroyed, that's not going to change. Like in Germany, someone can just as easily log in to google.com instead of google.de and turn up the unfiltered search results. The legislation can only hold for the EU, and unless they want to be like China and censor access to outside websites, they will have to accept that they can't control information in the way they feel they need to. That may be unfortunate for some people, but it's the bad that comes with the good. We can't choose to have an amazing resource of information which causes billions of people access to education, communication, work, travel, etc., and then say, "oh, but we only want the good stuff". Life doesn't work like that, and the internet certainly isn't an exception. Oliviabrinich (talk) 21:49, 22 February 2015 (EST)

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In the context of human rights, the right to be forgotten is akin the right to be left alone. Also similar to the right to be protected from unlawful searches in the home, and the right to peaceful enjoyment of a dwelling in the context of housing law. All this talk of free speech being under assault is a lot of hyperventilating, mostly espoused by those who think corporations have a right to collect any information from anybody at any time in the pursuit of profit. Sorry, those click disclosures on every internet transaction don’t count as full disclosure, and have been proven in court in many occasions to be insufficient. The reason being that those disclosures act as a one sided negotiation – either you accept the terms of the purchase, including sharing the information with third parties or you don’t get to make X-mas purchases on line. That’s an unfair contract.

The internet is finally bumping against its limits on free information and privacy. In fact, there are already laws protecting individuals from bullying on line and online breaches of bank accounts and financial information. So, if the rights of corporations and individuals are protected from libel and defamation, why shouldn’t individuals receive the same protection if they are private citizens? The problem in the U.S. is that profits trump everything else including free speech, in fact, they already censor blogs and social websites. Furthermore, the U.S. government has a free run to retrieve whatever information it wants from any individual living in the U.S., citizen or not.

Asking Goggle to delete records under the current guidelines established in the European Union is the least that can be asked of Google and other search engines in the U.S. as well as Face book and other social networks. Those who clamor for freedom of speech are forgetting that privacy does not exists any more, it is merely an illusion. Unless an individual takes complete control of his or her information, one cannot expect anyone in the U.S. to respect his or her privacy. The internet is heading into uncharted waters with this privacy issue and the right to be forgotten. Expect them to be barraged with thousands of law suits from individuals with criminal records who long after serving their sentences will still be haunted by their criminal past, from private citizens who have been victims of bullying and crimes on line and about a hundred other reasons I cannot enumerate on this blog.Hromero10 (talk) 08:36, 23 February 2015 (EST)

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Hello All!

As I contemplate “the right to be forgotten” on the internet I like to consider how these scenarios would have played out before the internet existed and try to apply a similar logic to our current situation.

In the past, if libelous information was published in a newspaper, the paper’s recourse would be to publish a retraction. However they could not ask for all their subscribers to destroy their copies. Consequently, in some circumstances the plaintiff could be awarded compensation for these damages.

Keeping this in mind, while I do believe libelous defamatory statements should be removable on the internet, I do not think it is wise to condone the removal of truthful statements and images from the internet because it would erase an accurate history and replace it with a false one.

Ironically, I suppose allowances such as these would benefit future historians, since it would validate their purpose, as they would have to not trust their initial findings through online searches. Instead, they would have to search for truthful information in more obscure locations.

Just as today’s historians need to look at primary sources including personal journals, I imagine historians of the future will be in search of the personal hard drives of the famous figures of our era.

-Emily MacIntyre

EmiMac (talk) 12:07, 23 February 2015 (EST)

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What we all fight for is to accomplish something in life in order to be remembered, with our achievements, creations, contributions to the society. At the same time we are fighting for staying in world’s collective memory, many of us are craving for a fresh start, for an opportunity for a second chance. The European union’s response is the proclaiming of the “right to be forgotten”. EU is motivating this newly established right with the need of protection of privacy. Jeffrey Rosen is saying “the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet ” which shows exactly that people are projecting this issue just in the online world. I think that we should not limit our reflections on the subject by transposing this right only to the digital environment. Eric Posner says “ Once information is online, it can be forever instantly accessible through search engines. No need to dig through archives or court records for the record of Costeja’s debt”. This clearly shows that Internet is not the problem, it is not the net which is menacing the right of privacy , it just makes things faster. The information would still exist on paper based records just it would not be so easily accessible. I find it rather unfair to blame Internet for just speeding up the process of search.

At the beginning I was very controversial about whether I am more a supporter of the European thesis regarding the issue or the American one. On one hand a situation like one described at the beginning of “the Solace of oblivion” by Jeffrey Toobin is really something we all would like to prevent as horrible and unjust. On the other hand, the demand of the two German killers demanding anonymity and suing Wikipedia’s, I find equally unjust.

I think there are really different aspects of this “right to be forgotten” which are still not well defined and speared neither by the legislation nor by the jurisprudence. I very much like the three categories of this right as described by Peter Fleischer. When it is about a personal information disclosed by someone, this person should be the one able to take it out of the public space the same way he put it there – the first category. But once this information, fact or action, has affected and interacted with the existence of someone else, it has become part of his “world” already , as I believe is the case with the German killers. We should be mastering our own lives but not those of other people and if through our actions we had become in someway part of someone else’s existence it would be unfair to dispose of his life as well. There are many dark periods in human’s history but it does not mean we should erase the names of the villains out of it.

The desire for a clean start, where no one would know about crazy parties we had as teenagers or personal tragedies , is a tempting option for everyone but I consider it first of all, impossible for execution and second I do not agree it is right to be claimed. Even if we make filter in search engines and ban certain websites, we would just use the technological capacity of the net to restrict the information in it but what we are supposed to do with books and newspapers? Does it mean we should burn them all if we found in them such kind of violation of the right to be forgotten or it is not the same just because they could be found only in libraries but not in Google ?

Second, in our lives we make choices every day, some of them turn out to be more important than others but these choices are defining us and make us what we are and we should be ready to face the consequences of each and every one of them otherwise it is cheating. And to the question that some people ask, whether we are supposed to bear the consequences. (Gia (talk) 06:01, 24 February 2015 (EST))

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The Slate article by Eric Posner made an imperative distinction in the discourse of Privacy and the Right to be Forgotten; that is, personal information is trickier to control in this day and age not because it cannot be erased, but simply because the Internet makes it easier to access.

A cogent commentary on the state of our society, the zeitgeist of our evolving understandings of what is “personal” and what is “public.” A commentary on what we are accepting as reality and perception – about ourselves. And down into the Carrolian Rabbit hole we go, falling, falling, falling – the machine, the world that we have created within these machines and within this network of machines is now fashioning us into things we are not; with the capacity to put information out there selectively, recklesslessly, ignorantly, and consciously, we are increasingly aware and sensitive to this notion of designing who we are and how we are perceived – and when embarrassing or private details about ourselves begin to create this digital narrative of who we are, our instant reaction is to press some buttons to change people’s perceptions about us –- be they true or not.

This fear of the Internet and the parts of it we cannot control is a perfect example of how man has finally created a mirror of himself that is haunting him more and more; he has created a creature, amorphous and ungraspable, that has the power to make perception reality. And make us believe that what everyone sees online is what everyone will believe.

I continue to return to the Solove article from two classes back on the confusion of what it is to have private information and what, exactly, privacy means now – if it ever had a meaning to begin with. A chilling idea that such a treasured notion can be so confused, interpreted and misinterpreted, and, even, abused, as in the case of the German murderers suing Wiki to have their names removed from an article. But even if our notions of privacy is as treasured to us as it is confusing, we still cannot allow our personal follies to reinvent what is true. Again, returning to the Posner article; it’s not that this information or facts about ourselves are “erased” – rather, it is simply made harder to access by the general world.

Gia, the poster on this board just before me made a rather wonderful summation of the situation in which we wish to extract information about ourselves even after it has come into possession of another individual. And yes, Gia, I agree with you in the particular way that you phrased it: that once information has been released by ourselves and becomes part of someone else’s “world” it is now of this world and it is no longer our clear and divine right to remove such information. By no means do I agree with the idea that our information is free and usable by all -- my information is my currency, it’s worth a lot to me and I will jealously guard it as best I can even if I know that for the most part it is a losing battle especially in the US. The EU is on the right track in putting this concern for protecting the individual on the table but it has yet to iron out the practicalities of what is enforceable, what is true to free speech and what is true to the act of recording history.

Tbe EU’s Right to be Forgotten movement seems to believe that we all have the individual right to pull out a Neuralizer – that gun from Men in Black otherwise known as the “memory eraser” – whether the memory is fact or fiction, we have the right to manipulate this certain virtual space to a reality that we are most “comfortable” with.

I’m finding myself more and more in the camp of regulation starts with yourself; if you post it it was your decision; if you acted that way, that was also your decision. In this Internet, smartphone, cameras everywhere age, I think it is more a matter of us changing our perception of our environment so that it has caught up with the modern age; we still somehow believe that we are living in the 19th century regarding what we believe we can get away with. The Internet has brought wonders to our world; but it has also brought this new world where we must always be more conscious about our actions; everyone has a camera, everyone has a blog, and, we are also humans – everyone makes mistakes. The lines where I see potential protection and hope in this grim and overexposed world is in the world of copyright (as Nikki Catsouras’ family attempted to approach it through) where you can order someone to take down an image, video, or recording that actually belongs to you, and in the legal worlds of defamation, false light, and appropriation.

To me, it is within these realms that there is hope to morally correct false or morally remove true information from public access. The other options currently visible on the table are just different iterations of a rather dangerous-looking Memory Erasing Gun.

Chanel Rion

Chanel Rion (talk) 09:38, 24 February 2015 (EST)