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Nine Questions Regarding “the Right to Be Forgotten”

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17 novembre 2016
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L. is a Brazilian professor and translator. In the 1970s, she was arrested and convicted for drug dealing in the USA. She spent two years in jail and was then released. By that time, only her family and closest friends were aware of her situation. Most of the people she knew believed she was in a cultural interchange. When she came back to Brazil, she led a normal life, got married, and had children. She did not regret her misadventures in the 1970s, but she clearly became another person as time went by. Fortunately, her past was behind, and all her skeletons were well locked inside the closet. Until Google opened it widely.

If you search for L’s name on Google, you will find, on the third page of research, the judicial decision convicting her 40 years ago. It seems important to understand, now, the reasons why somebody would go to prison for drug dealing in the 1970s. Access to such information is certainly relevant to the history of law, the development of public policies, and the enhancement of criminal law and criminal procedure. However, is the exposure of her full name actually necessary? Doesn’t it represent an extra burden, considering her judicial debts are already paid? What can she do, taking into account that people who have access to such information can harm her social interactions?

The so-called “right to be forgotten” is not new and did not appear for the first time on the internet. In the 1960s, in Germany, we can find the roots of the discussion in a criminal case known as “Case Lebach“. At the time, a man was arrested for participating in the assault of a military base and for the murder of some soldiers. After six years in prison, a TV channel decided to broadcast a documentary telling his story, emphasizing on some personal aspects of his personality, including the fact that he was a homosexual. He sued the TV channel, and the German court decided that the public exhibition of the program would impair his reinsertion in society since he was about to be released. Being so, his privacy should prevail.

Since 2014, however, the debate concerning the right to be forgotten has taken a dimension never seen before. It all began when Mario Costeja Gonzales, a Spanish lawyer, requested Google do delist (or delink or deindex) him because, after searching for his name on Google, you would find that he had some unpaid debts in 1998. He asserted that he had paid such debts and that the information was not only outdated but was also unimportant.

European Court decided in his favor and soon after, Google received more than 100,000 requests for delisting results in favor of an alleged right to be forgotten. Should Google accept such requests?

Well, there are a lot of problems arising from the implementation of a right to be forgotten on the internet. In Brazil, we are about to decide two cases in our Supreme Court that, despite referring to TV programs, will certainly impact future decisions related to the internet.

In one of the cases, the most influent TV channel in Brazil made a reenactment of a terrible murder involving children that took place in Rio de Janeiro, in 1993. During the show, they mentioned a man possibly involved in the crime. However, Court considered him not guilty, and any reference to him would harm his social life once many years had passed since then. The TV channel was considered guilty because, in short, they could tell the story without mentioning his name. The information was not necessary and freedom of expression was protected.

It is just the right opposite of the second decision. The same TV channel (in fact, the same TV show) reenacted the murder of a young woman in 1958. Her siblings sued the TV channel saying that they suffered all over again with the retelling of the story. The court decision, however, was in favor of the TV channel, with the argument that this story could not be told without naming the victim. It was indeed very unfortunate for her siblings, but the prohibition of referring to her name would make freedom of expression unfeasible.

After European decision, Brazil Congress has also tried to draft some bills of laws to regulate the right to be forgotten. However, they basically represent an attempt to private censorship or to increase the costs of the internet in Brazil. In one of the bills, anyone could request the removal of content that is irrelevant; in other, service providers on the web should have a call center to remove material that would fit the frame of the right to be forgotten.

The fact is that there is still a lot to be discussed before we can finally make a good public policy towards this subject. It seems to me that the right to be forgotten should be regarded as a very exceptional situation, to be applicable to private (or anonymous) individuals, in private spheres and for private purposes only.

Here are some questions that need to be addressed so we can better understand the right to be forgotten institute, its limits and the consequences of its use:

 

  1. is it a real right or an element of the right to privacy?
  2. should it be called a right to be forgotten or a right to be delisted (or delinked or deindexed) is a more suitable expression?
  3. does it refer to a public person or an anonymous individual?
  4. if it relates to an anonymous person, did she/he contribute to the information becoming public?
  5. is there any public interest in keeping that information on the internet?
  6. is the information necessary to assure the freedom of expression?
  7. is it a case of devoir de mémoir (like Nazism or historical and political issues; in these cases, not only a right to be forgotten is not applicable but there is a duty to remember);
  8. if the information if deleted, delisted or deindexed, can it constitute private censorship?
  9. and last, but certainly, most important: who should decide in which cases a right to be forgotten is applicable? Private entities, such as Google, or only Courts?

 

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