The Right to be Forgotten in Europe

On 28 January 2014, the Autoritat Catalana de Protecció de Dades (Catalan Authority on Data Protection) organised a conference under the title “The Right to be Forgotten in Europe” of which this is a summary:

At present, the information may remain on the net forever and the different searchers have a multiplying effect of that information. In this context, the right to be forgotten constitutes a barrier and is defined as the right by which information may be deleted when the wish to do so has a legal aim and if the information may condition the future of an individual.

The first talk, given by Pere Simón, professor and researcher of Constitutional Law at the University of Girona, was on the topic: “The challenge of the right to be forgotten on the internet”.

Mr. Simón starts off by defining the context in which the conflict arises, that is the internet. Nowadays, the whole world has access to information and can partake in it. Furthermore, the permanence of the information has also changed in as far as on the net it is maintained by default and is easily accessible via search engines. From the legal point of view, the freedoms of information, i.e. freedom of expression, of access to information, of citizen participation, are on the rise, while other rights, such as IP rights, are being breached.

He goes on to highlight the applicable legislation, that is, the Spanish Organic Law on Data Protection of 1999 and, in this regard, pointed out that regulations are always to be interpreted within the current social framework.

Thirdly, Mr Simón defends that the right to be forgotten fits into our Constitution. The legal basis for this right arises from that of personal identity; each individual has the right to control what is known about them. Our system is protective of human dignity and the free development of one’s personality is set forth in Article 10 of our Constitution.

This system contradicts the common law system, where hyper publicity is defended. This is what makes reaching international agreement all the more complicated.

In his opinion, the best way to protect internet users is to find extrajudicial alternatives: (i) from the viewpoint of the individual who puts the information into circulation, there are txt robots which, rather than avoiding the information from being indexed, stop the information from being tracked; (ii) using the Meta tags no-index (not no-follow) which are really effective if our aim is for our information not to be indexed.

From the viewpoint of the affected individual, there are also online protection tools, although these are only partial solutions and are not always satisfactory. One of Simón’s considerations  is that the damage is to the individual’s honor and privacy. Thus, the right to be forgotten (administrative aspect) and the right to honour (criminal aspect) should go hand in hand.

Mr Simón concludes that the right to be forgotten does not exist as such, but Spanish legislation does have pillars upon which it can be developed. In any case, it is not an absolute right and the principle of proportionality, public interest and duration should also be taken into account. These considerations should be made at source so that the search engines have a limited responsibility. Simón suggests default privacy systems as a solution to hyper publicity on the internet.

The second talk was given by the head of legal services of the Catalan Authority on Data Protection, Santiago Farré, who puts forward the questions: Is this a new right? Is its source Europe?

Traditionally, things were forgotten naturally, thanks to the limits in communication, time elapsing, etc. Only the memory of items of news of very special value remained. There were institutions designed to erase memory, such as reprieve or amnesty.

The problem arises with the internet and search engines which imbue information with permanence. The current legislation for the protection of citizens was passed before internet had grown.

To date, the txt robots have allowed us to solve a great number of problems on the net. Furthermore, there have not been many resolutions issued, either in the Spanish Courts, or in those of other European Member States, and the few resolutions on the subject which have been issued have tended to freedom of information to prevail.

On the European scene, the Court of Justice of the European Union is about to resolve –expected date in December – in the case Google Spain, Google Inc. vs AEPD and Maria Costeja. Indeed, the Spanish National High Court is pending this resolution before resolving on no less than 200 cases.

He concludes that it is doubtful whether the new Regulation to be passed by the European Union (if it is) will provide a satisfactory definition of the right to be forgotten, especially in view of the latest information, where the LIBE committee Report for the European Parliament has eradicated the term “right to be forgotten”, circumscribing the cases where it might be applied to the “right of erasure”.

We conclude, then, that this is a very dynamic and shifting matter, full of flaws and lacking in legal development. The majority of internet users undervalue the worth of their personal data and the consequences of posting them on the net. We are still not conscious of the real consequences of sharing data on the internet. If we are to believe the predictions that data will become the “new oil”, the right to data protection in the 21^st century will be as important consumer rights became last century.

Today is an important day for the Right to be Forgotten for Europe, as The Parliament has approved the Regulation on Data Protection. It remains to be seen what consequences it has in practice. However, a global regulation – unattainable at present – would be the only possible solution to avoid legal fragmentation and offer greater security to internet users, as well as improving the protection of fundamental rights and contributing to a better functioning of the internal market. There is no supra-national body with the necessary legislative power. And, as we have seen in the recent espionage problem, the States are loath to give up their control on information.

Author: María Muro