Berliner Gazette Article: Right to be forgotten-Differences between the US & EU

BerlinerGazetteLogoMy article on the recent EU court of Justice decision concerning Google and the commonly known “right to be forgotten” ruling was published in the Berliner Gazette on June 2.

A reprint of the article from the German Version follows. Construction and stylistic errors may exist because of the translation.

Article reprint:

The recent decision of the European Court of Justice in the case of “Mario Gonzalez vs. Costeja. Google “is expected as the” go right to be forgotten “in the story: Links to search results about a person can be deleted on request. As the judgment will affect laws in the U.S. and in the EU? The lawyer Avantika Banerjee commented.

According to the recent decision of the European Court of Justice , must be deleted in the results displayed by search engines like Google, links that affect the personal rights of an individual considerably.

Even if it is on closer inspection actually not a “right to be forgotten”, but rather a right to “Aggravation of information gathering on the Internet”, this term has gained acceptance in the wider community (often only of a “right spoken to forget “). The decision of the European Court of Justice brings to light the growing ideological and consequently regulatory differences between the US and the EU. On one hand the EU’s philosophy emphasizes individual rights and commitment to privacy, while on the other the US  idea of freedom of expression and access to information caries more weight.   

Drifting apart Views: Individual or collective rights?

The divergence with respect to privacy, individual online rights and information standards between the U.S. and the EU has a long history.

Briefly: It started in the 1990s when the EU Directive 95/46/EC (Data Protection Directive) was adopted. This policy forbade personal data to be transferred to non-EU countries that did not meet the established standards for the protection of privacy.

The United States did not meet this standard, which then led to the creation of a standardized US-EU Safe Harbor. This enabled U.S. companies that met the criteria of the “safe harbor” use personal data of customers from the EU and do business in the EU. More recently in 2014, the French Data Protection Authority  fined Google  because they did not operate in accordance with the French Privacy and Data Protection Policy.

What is even more private, what public?

The EU ideology concerning the protection of privacy has been recently described by the legal scholar Jeffrey Rosen as follows: “The intellectual origins of a” right to be forgotten “can be found in Europe in the French law that bears the title “le droit à l’oubli ” or the “right of oblivion”— a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration.

The EU consistently has examined, debated and explored the idea of public versus private, what individual rights mean. In the current instance of the ‘right to be forgotten’ ruling (allowing anyone to demand that a search engine should remove unwanted personal information from its search index), it has remained true to its ideology of protecting individual rights. The ruling gives more power and protection to the common man i.e. individuals who are not public figures – a logical consequence of the EU’s attitude to the question of how personality rights must be configured in the digital age.

The very same ruling in America how ever has been met with criticism. As the New York Times summarized in a critical editorial,  the ruling “could undermine press freedoms and free speech.” It came to the conclusion that the judgment can undermine the press and freedom of expression. One consequence could be that Europeans are “less informed” in the future. Judges should, according to the New York Times, bring no right to the road, which could be so powerful that it could lead to the restriction of press freedom, or allow individuals the right to  demand that lawful information hidden in news archives be hidden.

Individual rights and the right of the public to free access to information

From a US perspective, the idea of control over publicly available information, the fact that an individual can exert censorship, seems to hit at the fundamental ideal of “free speech”. The Internet in its most fundamental form seems to draw its strength from the fact that governments and/or institutions do not govern it.

On a theoretical and abstract level, I agree with the Court of Justice perspective regarding protection of individual rights:personality rights must be protected . But when you look at some passages of the law in the text, such as ” “having regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, the information and links concerned in the list of results must be erased”; It raises serious questions about whether the verdict should be put into practice, given the ambiguous and non specific criteria in many places that leaves room for interpretation.

The EU’s commitment when it comes to issues of protection of privacy and personal data is admirable and has set the standard for worldwide regulations . How ever will this ruling inspire other countries to adopt a “privacy regime” that allows removal of public facts and relevant information from the internet and public access based on the ‘right to be forgotten’?  Will it lead to different regions seeing different versions of the Internet?

Wikipedia founder Jimmy Wales already warns of a comprehensive censorship of the net. In an increasingly contentious environment surrounding the free nature and governance of the Internet these are questions that need answering.

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