Should There be a “Right to be Forgotten” on the Internet?

By Staff | February 15, 2012

Is EU Justice Commissioner Viviane Reding asking Google to censor the web?

Being forgotten is not usually something people wish for. At the moment, however, a debate is raging in Europe about the right of citizens to be forgotten when it comes to information stored on the Internet.

Like SOPA and PIPA earlier this year, new provisions in the EU’s Data Protection Directive are raising questions about speech, privacy, censorship and what it means to publish on the web.

So, what does it say?

Article 17 of the Data Protection Directive proposes to give EU residents the right to control and delete facts about themselves that were once voluntarily published on the Internet. This covers anything from the personal information given to credit card companies, to that published on social media sites, and then everything in between.

A spokesman for the European Justice Commissioner Viviane Reding goes on to explain that “these rules are particularly aimed at young people as they are not always as aware as they could be about the consequence of putting photos and other information on social network websites, or about the various privacy settings available.”

In other words, the rule has been designed, in part, to help young people manage their reputation. It plays on the assumption that twenty-something job seeker does not want to, and should not, be haunted by less-than-worthy pictures taken of them when they were 16.

A wide-ranging attempt to “protect” the privacy of European citizens, the EU is even looking to search engines for unprecedented levels of cooperation.

From the preamble:

To strengthen the ‘right to be forgotten’ in the online environment, the right to erasure should also be extended in such a way that any publicly available copies or replications in websites and search engines should also be deleted by the controller who has made the information public.

While to some this may seem to be a worthy and consumer-friendly undertaking, critics are using the language of censorship and pointing to the impact on speech.

Writing for Time, Jerry Brito speaks about “personal memory holes” a la 1984 and the inverted interaction between privacy and free speech:

The new law would flip the traditional understanding of privacy as an exception to free speech. What this means is that if we treat free expression as the more important value, then one has to prove a harmful violation of privacy before the speaker can be silenced. Under the proposed law, however, it’s the speaker who must show that his speech is a “legitimate” exception to a claim of privacy. That is, the burden of proof is switched so that speakers are the ones who would have to justify their speech.

The wording of the law explains that the data can be saved only where it is “necessary for
historical, statistical and scientific research purposes, for exercising the right of freedom of expression, when required by law, or where there is a reason to restrict the processing of the data instead of erasing them.”

So, back to the point Jerry Brito made: publishers would be forced to comply unless they can show a “legitimate” reason not too. The burden of compliance looms. And this will not be restricted to Europe. These rules will apply to U.S. websites as well, in so far as they are accessed from Europe. Think Facebook, Google et. al.

Another outspoken critic, Jane Yakowitz of Brooklyn Law School writes about the “draconian fines” outlined in Article 79. In this provision, EU authorities will collect 1% of an enterprise’s annual revenue in fines for failure to comply with the right to be forgotten. On top of that, Violation of other data rules could lead to fines of up to a million euros or 2% of a company’s global revenue.

All this brings me to two (rhetorical?) questions…

First: how is this different from SOPA/PIPA?

Is removing content from the web in the name of privacy censorship? As much as doing so in the name of stopping online piracy? How can we balance the concepts of free speech and to privacy in the Internet age?

And this leads me on to my second question: Is there a right to be forgotten when information was given and published freely, just because it was published on the Internet?

If you publish something in print — in a book or magazine, you cannot take it back. Why should the Internet be treated any differently?

If they ever did, people no longer see Internet publishing in the same way as traditional publishing. The Internet is a world where writing has become disposable: easy to submit and easy to consume. “Speech” is published immediately and without a second thought. And so, according to its users, the Internet is different and should thus be treated accordingly.

Whether or not this difference in production should change the way the final product is treated is the philosophical question at the heart of the debate. But it is the censorship argument that will make or break this directive — as it broke SOPA and PIPA. I would like think more about this angle, but for now, while I understand the free-speech arguments put forward, the definition of censorship is too often seen starkly in black and white. In this new age, discussions about speech, privacy, information publication and their regulation need to catch up.