Friday, July 04, 2014

Right to be Forgotten Presents a Host of Problems

The internet contains a lot of information about people that in many cases those people wish wasn't there. It might be indiscreet posts on Facebook, pictures and newspaper articles posted or linked on websites. Or links showing up in search engines. It might be a case of "revenge porn", where photos or videos are posted of a person engaged in sexual activity by someone with destructive motives. In Canada, as elsewhere, we've seen the trauma that this can cause for young people.

Many of us would not want to be held to account for everything we did as a teenager, yet today a lot of their activities and thoughts are recorded for posterity. When they apply for a job, the search begins. This can be very unfair.

Because of these and other circumstances, the EU passed a ruling recently providing that people could request the deletion of certain information about themselves. The question of enforcement was unclear. In a court case in France, a finding against Google held that search engines are responsible for the links that show up in their searches and therefore must comply with legitimate requests to have them removed.

The provisions in the EU ruling are extremely vague about how to determine when deletion requests are legitimate. The legislation seeks to balance the rights of the individual to privacy against the rights of the public to know. But this involves making a lot of decisions as to when the line is crossed. Decisions that Google is not really equipped to make. Some situations are relatively obvious - a revenge porn video, for example, would presumably be an obvious candidate for deletion. At the other extreme, a request by a convicted habitual pedophile to have community bulletins or news reports deleted would more likely be ruled against because of the public's right to know. But there is a very wide range of circumstances in between.

The ruling also raises questions about censorship and violation of freedom of the press. And there are even more basic questions about violations of free speech. In the US, the First Amendment makes it unlikely that legislation similar to that in the EU would pass. But then, it's not that simple. Legislation already requires that certain information be deleted, for example, from credit reports after a period of time. Is the right to be forgotten just a new version of the old, well established, right to privacy or something totally new?

To compound the issue, the BC Supreme Court recently ruled that Google must remove certain information world-wide from its search engines. This goes even further than the EU ruling, which only applies in the EU. Therefore links deleted under the EU law will still show up in US or Canadian searches. Google has appealed the BC ruling on the grounds of lack of jurisdiction and extra-territoriality, an appeal that has every chance of success.

The problems raised by the right to be forgotten are massive. And yet, there are those situations where there is an obvious need to exercise and respect that right. The courts are struggling to deal with the issue. But it can't be left to them. Legislators need to buckle down and try to address the issues in more specific terms. The EU ruling is totally inadequate. They will have no choice other than to provide more direction in its application.

For some reading on the subject:
1. Google's 'right to be forgotten' takedowns a 'challenge to press freedom' - The Globe and Mail
2. Google Starts Purging Search Results in Europe - The E-Commerce Times
3. For Google, the ‘Right to Be Forgotten’ Is an Unforgettable Fiasco - Wired
4. The right to be Forgotten - Stanford Law Review
5. Google appealing BC court decision that would delete websites from search results - The Vancouver Sun

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