Research Post: The Right to Be Forgotten

I&A Research Teams are groups of dedicated volunteers who monitor breaking news and delve into ongoing topics affecting archives and the archival profession. Under the leadership of the I&A Steering Committee, the Research Teams compile their findings into Research Posts for the I&A blog. Each Research Post offers a summary and coverage of an issue. This Research Post comes from the Other Professional Associations’ Communications Research Team, which monitors the communications of other associations, for issues related to archives.

Please be aware that the sources cited have not been vetted and do not indicate an official stance of SAA or the Issues and Advocacy Roundtable.

This is the first in a series of posts about the Right to Be Forgotten. Stay tuned for additional coverage.

SUMMARY OF THE ISSUE

The Right to be Forgotten (RTBF) is a 2014 legal ruling by the Court of Justice of the European Union (CJEU) that gives individuals the right to have information found on the Internet regarding themselves delisted (be made difficult to find) in search engines and in other data providers (such as websites). The CJEU’s ruling stems from a 2010 legal case in Spain in which a Spanish citizen filed a complaint with Spain’s national data protection agency against a Spanish newspaper, which published a true fact about the person, and Google Spain/Google Inc., whose search engine results linked to the information about the person. The citizen argued that the information about him was no longer relevant and that the search engine results infringed upon his privacy rights. (3) In February 2016, the French Commission Nationale de l’Informatique et des Libertés (CNIL), which chairs the Article 29 Working Group (European Union privacy regulators), extended the implementation of the RTBF law to all domains (extensions) of a search engine. (7) Previously, the delisting would only happen in the country of the individual who requested (and was approved) the delisting. In February 2015, the Guardian reported that Google said it had “received 386,038 ‘right to be forgotten’ removal requests since the ruling, and has accepted approximately 42% of them.” (4)  A year later, the Guardian further reported that Google had delisted 600,000 search results. (7)

Some main points of the RTBF ruling:

  1. Individuals have the right to request information about themselves found on the Internet be delisted if the “information is inaccurate, inadequate, irrelevant or excessive for the purposes of the data processing.” (3)
  2. According to the CJEU’s ruling the request for delisting needs to be assessed on a case-by-case basis because neither the right to the protection of personal data nor the right to freedom of expression are absolute rights. Therefore each case needs to be assessed individually considering the personal privacy of the individual versus the freedom of expression and access to information. (3)
  3. The data providers (for example Google, Inc.) are tasked with the application of the RTBF ruling. Delisting of information on the Internet will be decided by the data providers, not legal or governmental bodies.
  4. Data providers cannot disclose internal processes, or what has been subject to delisting on the Internet. The original publisher or owner of a website cannot be notified when something is delisted.
  5. There are previous rulings in the European Union that prefigured the 2014 ruling, such as the European Union Data Protection Directive 95/46/EC of 1995. In Germany, an individual has the right to privacy and to rehabilitation after they have paid their debts to society (for example after completing a term of a prison sentence).
  6. Public figures are not (usually) subject to the RTBF ruling.
  7. The CJEU believes that the RTBF ruling “strikes the balance between the right to the protection of personal data and freedom of expression.” (3)

In February 2016, the International Federation of Library Associations and Institutions (IFLA), issued an official statement regarding the 2014 RTBF ruling. In the statement, IFLA addressed the issues of the RTBF ruling and its implications for libraries and urged its members to participate in policy discussion regarding RTBF. (1)

IFLA’s list of issues for libraries concerning the RTBF ruling:

  1. Integrity of and access to the historical record.
  2. Freedom of access to information and freedom of expression. This is based upon Article 19 of the United Nations Universal Declaration of Human Rights, which states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (6)
  3. Privacy of the individual.

The RTBF ruling strikes at some of our core values as archivists, librarians, and information professionals. We strive to protect privacy rights of the individual, yet we also strive to protect the integrity of our information sources, support the freedom of expression, and advocate for access to information. Further, the delisting of information, especially information that is truthful and accurate, goes against some of the core values and code of ethics outlined in the Society of American Archivists’ “Core Values Statement and Code of Ethics.” (8)

In 2015, a public debate was held in New York City on the RTBF ruling titled “The U.S. should adopt the Right to be Forgotten Online.” (5) [The video is available online.] One of the participants of the debate, Jonathan Zittrain of the Berkman Center for Internet and Society, said that the United States should not adopt the RTBF because he felt that the RTBF ruling was “a very bad solution to a very real problem.” He gave the following analogy that we as archivists, librarians, and information professionals can relate to regarding the delisting of information on the Internet: “It’s like saying the books can stay in the library, but you have to set fire to the card catalogs.” (5)

Some critiques of the RTBF ruling include:

  • The rules (of the RTBF ruling) are vague and unclear.
  • The decisions for delisting/erasure are left to corporations.
  • There is no transparency or accountability to the delisting of information.
  • Due to the vagueness of the ruling, the principle could expand beyond search engines.
  • RTBF is censorship (particularly when delisted information is true/factual/accurate).
  • The territorial scope of the RTBF ruling goes beyond the European Union.

As the IFLA statement on the RTBF ruling advised, we need to monitor how the RTBF ruling is being applied in Europe and around the world and how it affects the integrity of and access to the historical record on the Internet. Countries outside of Europe, including Japan, Colombia, Brazil, and the United States have implemented similar rulings or have delisted information on the Internet. (2) In 2018, the European Union General Data Protection Regulation (GDPR) will supersede previous data protection laws In Europe. (9) Understanding the new 2018 regulations and how they may affect privacy rights of the individual, freedom of expression, access to information, and the integrity of the historical record on the Internet will be crucial.

BIBLIOGRAPHY OF COVERAGE OF THE ISSUE:

Sources cited:

(1) “IFLA Statement on the Right to be Forgotten.” International Federation of Library Associations and Institutions. Accessed 2016 April 26. http://www.ifla.org/node/10272?og=29

(2) “Background on the Right to be Forgotten in National and Regional Contexts.” International Federation of Library Associations and Institutions.  Accessed 2016 April 26. http://www.ifla.org/files/assets/clm/statements/rtbf_background.pdf

(3) Fact Sheet on the “Right to be Forgotten” ruling (c-131/12). European Commission. Accessed 2016 April 26. http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf

(4) Gibbs, Samuel. “Google to Extend ‘Right to be Forgotten’ to all its Domains Accessed in EU.” The Guardian. (February 11, 2016). Accessed 2016 April 26. https://www.theguardian.com/technology/2016/feb/11/google-extend-right-to-be-forgotten-googlecom

(5) “The U.S. should adopt the “Right to be Forgotten Online.” Intelligence Squared Debates. (March 17, 2015) Video accessed 2016 April 26. https://www.youtube.com/watch?v=yvDzW-2q1ZQ

(6) United Nations Universal Declaration of Human Rights. United Nations. Accessed 2016 April 26. http://www.un.org/en/universal-declaration-human-rights/

(7) Hern, Alex. “Google takes right to be forgotten battle to France’s highest court.” The Guardian. (May 19, 2016). Accessed 2016 June 2. https://www.theguardian.com/technology/2016/may/19/google-right-to-be-forgotten-fight-france-highest-court

(8) “SAA Statement of  Core Values and Code of Ethics.” Society of American Archivists. Accessed 2016 June 2. http://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics#.V1GPnzUrKUm

(9) “Reform of EU Data Protection Rules.” European Commission. Accessed 2016 June 2. http://ec.europa.eu/justice/data-protection/reform/index_en.htm

Other sources regarding the RTBF:

Toobin, Jeffrey. “The Solace of Oblivion.” The New Yorker. (September 24, 2014). Accessed 2016 April 26. http://www.newyorker.com/magazine/2014/09/29/solace-oblivion

Scott, Mark. “Europe Tried to Reign in Google. It Backfired.” The New York Times. (April 18, 2016). Accessed 2016 April 26. http://www.nytimes.com/2016/04/19/technology/google-europe-privacy-watchdog.html

“Freedom: the right to be forgotten.” My Digital Rights. British Library. Accessed 2016 April 26. http://www.bl.uk/my-digital-rights/videos/freedom-the-right-to-be-forgotten

Google Transparency Report. “European privacy requests for search removals.” Google. Accessed 2016 June 2. https://www.google.com/transparencyreport/removals/europeprivacy/?hl=en

The I&A Steering Committee would like to thank Patricia Glowinski and Blake Relle for writing this post.

The Other Professional Associations’ Communications Research Team is:

Tara Kelley, Leader
Jamillah Gabriel
Patricia Glowinski
Jasmine Jones
Blake Relle

If you are aware of an issue that might benefit from a Research Post, please get in touch with us: archivesissues@gmail.com.

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2 thoughts on “Research Post: The Right to Be Forgotten

  1. Pingback: controlaccess: Relevant Subjects in Archives and Related Fields for 2016-07-17 | SNAP roundtable

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