Madhavi Goradia Divan
The European Court of Justice fashioned a new facet of the right to privacy — the right to be forgotten — last month. Technology facilitates the automatic sifting and collation of data, enabling personal information, which may have otherwise faded into the background, to acquire an unwitting permanence and a disproportionate prominence in the public domain. In the race to build enormously lucrative digital businesses by amassing mountains of personal data, companies have trifled with the individual’s right to privacy. A private person has little control over her personal information in the public domain and regardless of its currency, relevance or newsworthiness, it may continue to haunt her in the present. The right to be forgotten seeks to address a facet of privacy, a matter of pressing concern in the digital age. But it creates as many problems as it seeks to resolve.
The European court’s ruling came in a case where a Spanish national, Mario Costeleja Gonzalez, sought the deletion of personal information which he claimed no longer retained relevance. Reports in La Vanguardia, a Spanish newspaper, dating back to 1998, detailed attachment proceedings for the recovery of social security debts owed by Gonzalez. These reports were linked to his name on Google so that when an internet user entered his name in the search engine, the results displayed links to those pages of La Vanguardia of 1998. Gonzalez contended that the attachment proceedings against him had been resolved years ago and that the reference was entirely irrelevant to his present status.
The European Court of Justice held that the operator of the search engine engages in “processing” information which it retrieves, records, organises and makes available to its users, an automated activity that significantly impacts the fundamental right to privacy and protection of personal data. The court ruled that the operator is obliged to balance the right to protection of personal data with the interests of internet users by erasing stale information. The court recognised the right to be forgotten after a certain point of time, a right to purge oneself of an irrelevant and inconvenient past. That right is a facet of privacy founded on the French doctrine of “le droit a l’oubli” or the “right of oblivion”.
While entertaining a request from a party seeking the erasure of information claimed to be outdated or irrelevant, the operator is now obliged to examine the relevance or propriety of the continuance of that information in the public domain. In compliance with the ruling, Google has put into place a mechanism to entertain requests for erasure, which will require it to consider whether the information has passed its shelf-life or whether it is in the public interest to retain it. Google is creating an expert advisory committee to enable it to navigate through this difficult and unwieldy process of judgement in individual cases.
The ruling is problematic in more ways than one. It imposes on the search engine the onerous burden of making a judgement on the relevance and public interest implications of the information. It thus thrusts the search engine, so far a neutral reservoir of data, into the position of a supreme censor. Given the potentially crippling commercial implications of a refusal to comply with a request for deletion, a search engine may consider it prudent to err on the side of caution and comply indiscriminately or excessively with take-down requests. The result would be a huge chilling effect on free speech and the public’s right to information.
The ruling highlights the divergent approaches to privacy in Europe and the United States. The right to be forgotten is not quite consistent with the First Amendment under the American constitution, which allows for more robust free speech. A search engine with no footprint in Europe could still display information regarded as worthy of being forgotten in Europe. Besides, European internet users may find ways of accessing information available in the United States. In times when information flows seamlessly across geographical and jurisdictional barriers, the ruling is difficult to implement.
At a more fundamental level, information of public interest such as a conviction for sexual offences, fraud or financial malpractice cannot have an expiry date. How detrimental would it be, for instance, to permit our elected representatives, many of whom have criminal records, to wipe off damned spots from the past? Why should it be left to Google or Yahoo to decide how clean their slates look?
The writer is a Supreme Court advocate and author of ‘Facets of Media Law’ firstname.lastname@example.org