‘The right to be forgotten’

The internet is unforgivably permanent. Making its content available almost in perpetuity.

The key question becomes: if information posted about someone online is evidently proven to be incorrect, does the person have the right for the said content to be removed, so that it does not cast him or her in a bad light online?

This question was the subject of a landmark court case; Mario Costeja González versus Google Spain SL, Google Inc v Agencia Española de Protección de Datos (2014). Costeja González, a Spanish national, brought a complaint to Spain Data Protection Agency against La Vanguardia newspaper, Google Spain, and Google Inc. González, wanted the court to rule that the newspaper should remove or alter the records of a 1998 story it had carried of court proceedings, so that this information will not be available online or through Internet search engines.

The agency ruled that Google was liable to protect González’s personal information but the complaint against the newspaper was dismissed.

On appeal, a court ruled that: “the operator of a search engine is obliged to remove from the list of results displayed, following a search made on the basis of a person’s name, links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.” [https://tinyurl.com/y38chfzs ]

The Court further ruled that individuals whose personal data is on Internet search engines which are public spaces, may “request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results”.

It is imperative to note that, the court in its ruling noted such requests should be “ justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.” [para. 99]

In the settlement of this landmark case, “the right to be forgotten” term was born.

Also known as the “right to erasure,” it gives citizens of EU, the power to demand personal data about them on any platform to be deleted upon request.

Workings, implications

The right to be forgotten is codified and contained in the General Data Protection Regulation (GDPR) https://eugdpr.org. The GDPR was designed to harmonise data privacy laws across Europe and to reshape the way organisations within the region deal with data privacy.

Any member of the public can make a request to any organisation either in “writing or verbally” to have their information removed from a platform or other data bank.

The recipient usually has one month to respond to such requests.

The right to be forgotten regulates erasure obligations, including where the data is no longer needed for its original purposes, as well as when the data subject withdraws his consent.

Since May 2014, Google (https://tinyurl.com/y4yow9m90 ) has reported that it has delisted 45 per cent of the 854,988 requests made to remove 3.3 million pages.

It must be pointed out that the right to be forgotten is not absolutely guaranteed and is only applicable in prescribed circumstances.

Its limitations occur when it is in conflict with the right of freedom of expression and information or impacts legal obligations, or archiving public interest information.

Not applicable globally

In 2015, French privacy regulator, Commission Nationale de l'Informatique et des Libertés (CNIL) ordered Google to remove search results listing pages having false or damaging information about an individual not only in their home country, but from searches done globally.

Google did not comply with this request. The case went to court.

Google claimed that such a global ban could be abused by authoritarian governments trying to prevent human rights abuses from coming to light.

Google won.

The European Union’s (EU) highest court ruled that Google does not have to apply the right to be forgotten globally; meaning if Google is ordered to remove links to a persons’ sensitive personal information and data, it must confine this to search results in Europe only.

In conclusion, the right to be forgotten is a complex issue, on one hand it offers protection of personal information and data, but on the other hand, it can impact negatively on freedom of information when it creates opportunity for regulation of what content is available online or not.

Countries like Ghana, in considering how to deal with it, must consider its pros and cons, however, significant weight ought be placed in favour of freedom of information.

The writer is Director of Innovation at Penplusbytes.org

E-mail: kwami@penplusbytes

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