The so-called right to be forgotten remains controversial. Should individuals be able to have certain data about them deleted — long-past legal penalties, data that is no longer true, or even revenge porn, where intimate images are published by disgruntled ex-partners or hackers? Or is that censorship, a cynical rewriting of history?
The full spectrum of opinion on this issue was displayed during a panel discussion at the annual conference of the International Association of Privacy Professionals ANZ (iappANZ) in Sydney on Monday.
The idea of a right to be forgotten has been discussed in legal circles for years. But in May this year, in the case of Google Spain v AEPD and Mario Costeja Gonzalez, the European Court of Justice ruled that European Union citizens have a fundamental right to demand that a search engine disable links to any content that contains personal information about them that has become “inadequate, irrelevant or no longer relevant, or excessive” for the purpose for which it was collected.
“What that might mean is anybody’s guess. The court gave no information or assistance as to what that might mean,” said Anne Flahvin, media and communications counsel at Policy Australia and special counsel at Baker & McKenzie. “The privacy interest was essentially on a high plane. If there was a preponderant public interest, then the search engine could decline to take the content down.”
Google has received more than 200,000 requests for links to be removed since that ruling. And yet even if the links are removed from Google’s search results in Europe, they’ll still turn up in searches conducted outside the EU, or on other search engines, or directly on news sites — and of course the items they link to will still exist.
The United Kingdom was blindsided by the EU decision, and the UK government’s official position is that the right to be forgotten is unworkable. “Anything that is impractical, impossible, [and] undeliverable is a nonsense, and we should not countenance it. We are not going to shift from our position that the right to be forgotten must go,” wrote the House of Lords European Union Committee.
“The decision was a peculiarly European decision, and the idea of Europe, where privacy trumps free speech,” journalist and publisher Richard Ackland told the conference. “The Americans are just completely appalled by it, because in America free speech trumps privacy. Here [in Australia] there’s no trumping at all. Where do we stand on this? It’s yet to be resolved.”
The Marcus Einfeld case illustrates how the right to be forgotten might affect public interest journalism, Ackland said. Einfeld had told a court that a friend, Teresa Brennan, had been driving his car when it was caught by a speed camera, but a journalist found information online that detailed Brennan’s death three years earlier.
“I suppose in the European context a lot of it would have been unnecessary, or too old, or unworthy,” Ackland said. “If this right to be forgotten was in play, it would be doubtful if some of that material about Teresa Brennan would be allowed online. The family might apply to have it taken down.”
David Vaile, co-convener of the CyberSpace Law and Policy Centre at the University of New South Wales, disagrees. “It’s a storm in a teacup, the media saying, ‘It’s all about me’, Google saying, ‘It’s all about me, but we won’t say it too loudly’. Everybody except the data subjects has something to say on this. In fact, in Australia we’ve had the right to be forgotten entrenched in law — uncontroversial, straightforward, no fuss, no mess — for about 30 years. The spent convictions legislation, it’s designed entirely to deal with exactly this situation.”
Vaile says that in Europe, privacy balances free speech, rather than trumping it. “The problem with the US is that certainly free speech trumps just about everything — particularly free commercial speech. Here, we actually have no rights. I’d be happy to campaign for a right to free speech, or a right to privacy,” he said. The principle of the right to be forgotten is “unremarkable”.
“Can I say I don’t agree with anything David said. With the greatest respect,” said Peter Bartlett, partner at Minter Ellison Lawyers, who thinks the right to be forgotten is “absurd”. “No one’s saying that this stuff online is inaccurate. It’s all true. So these people are actually trying to rewrite history.”
Bartlett cited the appeals cases of Mokbel in Victoria and Ibrahim in NSW, which said, in essence, that the court should not make an order it can’t enforce, or which is largely ineffective. “Here [in the EU case], the court has made an order in relation to Google taking down, but it can’t enforce it against all of these other publishers.”
Clearly we’re far from consensus here.