The Right to be Forgotten?
Presented on 2022-02-26. For LL.M. students of Pericles Center for International Legal Education.
Pranesh Prakash
Co-Founder
Centre for Internet and Society
Affiliated Fellow
Information Society Project, Yale Law School
CC-BY-SA 4.0: (copy, share, adapt: sharing is caring)
no proprietary standards or software were used in the making of this slide deck
"The Right to be Forgotten"
What do you understand by that phrase?
Why now?
Because of popularity of rights discourse?
Why now?
Technology.
Why now?
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Lots of data.
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Cheap storage.
-
Easy searching
-
Non-local access
Lots of Data
Mass digitization of paper information +
born-digital information.
(Writing is tied to civilization, inter-generational memory, and state administration.)
Long-lasting archives.
Lots of Data
Our experiences, our conversations, and even our thoughts are digital.
Cheap storage
The cost of storage has plummeted.
Cheap storage
Borges' Library of Babel, imagined by jwz.
Cheap storage
Cheap storage
Golden age of archiving.
Archive.org:
- Wayback Machine: 57 PetaBytes;
- Books/Music/Video Collections: 42 PetaBytes;
- Unique data: 99 PetaBytes;
- Total used storage: 212 PetaBytes
Cheap storage
Permission-less archiving.
Easy Search
HotBot meta-search engine
Easy Search
Text, audio, images, video.
Everything can be searched.
Easy Search
Is it better to give your child a very common name or an unusual name?
Search even affects human naming!
Non-local retrieval
Tax records in Norway are public.
Govt. office vs. the Internet.
Non-local retrieval
Oblivion through friction
Whence arises the "Right" to be Forgotten?
Right of the personality:
- Dignity
- Honour
- Private life
Data protection law
Whence arises the "Right" to be Forgotten?
Other legal bases?
- Defamation law
- Tort law
- Intellectual property law
- Contract law
Whence arises the "Right" to be Forgotten?
France:
Droit à l’oubli
Even USA:
Melvin v. Reid
Sidis v. F-R Pub. Corp.
Briscoe v. Reader's Digest Ass'n, Inc.
Whence arises the "Right" to be Forgotten?
China:
Ren v. Beijing Baidu
India:
{Name Redacted} v. Registrar General (Kar. HC)
but: Madras HC dismissed
What ought RTBF encompass?
Costeja:
"appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed."
GDPR:
"the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed"
What ought RTBF encompass?
Search engine listings?
Newspaper articles?
Government records?
Facebook posts & contacts & photos?
What ought RTBF encompass?
Personal data?
Non-personal data as well?
What ought RTBF encompass?
Removal from name-based searches, but not actual records?
Removal of names / photos in an article/post?
What ought RTBF encompass?
Hurbain v. Belgium (ECHR 196 (2021))
Le Soir
Google Spain v. AEPD and Mario Costeja González (CJEU Case C-131/12 (2012))
Google Spain
How far ought RTBF apply?
Within a country?
Within a region?
World-wide?
How far ought RTBF apply?
What about cross-jurisdictional requests?
Should an Indian be able to apply for data removal under Russian law?
What kind of publicity should RTBF receive?
Should intermediaries (search engines, social networks) notify publishers / authors?
Should publishers notify other parties?
Exceptions to RTBF
Under GDPR Art. 17
1. Freedom of expression
2. Legal obligation / public interest task
3. Public health
4. Archiving in public interest, scientific or historical purpose or statistical purpose.
5. Establishment, exercise or defence of legal claims.
Is there a "Right to Forget"?
If criminals are no longer "criminals" after a "substantial" period of time has elapsed, what about crimes?
Should past wrongs continue to haunt those who perpetrated it and those who suffered from it, across multiple generations?
Is there a "Right to Remember"?
"Never forget"
"Right to Remember": Roma genocide
"Right to Memory": Colombia, Brazil, etc.
Is there a "Right to Remember"?
Collective rights/duties vs. Individual rights?
Is memory a curse?
Blessed are the forgetful, for they get the better even of their blunders.
– Friedrich Nietzsche
How happy is the blameless vestal's lot!
The world forgetting, by the world forgot.
Eternal sunshine of the spotless mind!
Each pray'r accepted, and each wish resign'd;
Labour and rest, that equal periods keep;
"Obedient slumbers that can wake and weep;"
Desires compos'd, affections ever ev'n,
Tears that delight, and sighs that waft to Heav'n.
Is memory a curse?
He had effortlessly learned English, French, Portuguese, Latin. I suspect, nevertheless, that he was not very capable of thinking. To think is to ignore (or forget) differences, to generalize, to abstract. In the teeming world of Ireneo Funes there was nothing but particulars—and they were virtually immediate particulars.
– "Funes, the Memorious", Jorge Luis Borges
What Alternatives to RTBF?
What do you think are alternatives?
What Alternatives to RTBF?
Should we mimic past societies or should we seek to change society itself?
Contact Details
pranesh@prakash.im
