The Balance Inherent in the Right to be Forgotten
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Trust me, I’d love to stop writing about the RTBF. I’m not even sure how it came to take up so much real estate on this blog and in media generally. Especially since, as I’ve said before, it isn’t really anything new! Nevertheless, the RTBF continues to rankle as the original decision reverberates through search engine companies and various countries around the globe.
A New York Times article on 5 Aug 2015 sets out the original decision and examines the changes wrought by the decision, positing that the RTBF will ultimately spread outside the EU boundaries and become normalized in multiple jurisdictions including the US.
Emma Llansó, a free expression scholar at the Center for Democracy and Technology, is quoted criticizing the RTBF within the context of the US saying:
“When we’re talking about a broadly scoped right to be forgotten that’s about altering the historical record or making information that was lawfully public no longer accessible to people, I don’t see a way to square that with a fundamental right to access to information”
The article provides strong arguments on the other side as well. Marc Rotenberg of the Electronic Privacy Information Center that says that “global implementation of the fundamental right to privacy on the Internet would be a spectacular achievement” and a positive development for users. Asked about the allegation that freedom of speech is compromised by the removal of information, he notes that there are ways to limit access to private information that do not conflict with free speech and in fact that Google already has a process for global removal of some identifiable private information, like bank account numbers, social security numbers and sexually explicit images uploaded without the subject’s consent (“revenge porn”) that hasn’t attracted the same concerns.
As for concerns about international implementation, Jonathon Zittrain of the Berkman Centre for Internet and Society at Harvard reminds us that this too is already in practice—when Google receives a takedown notice for linking to copyright infringing content, it removes those links from all of its sites across the world.
PERSPECTIVE
In any discussion of this issue it’s important to understand that RTBF was not intended to be an absolute right – rather it is inherently a process of balancing competing interests. Indeed, after the original RTBF decision, Google instituted a process by which individuals could make RTBF requests. Their own data shows that since the process was instituted in May 2014, roughly 41 percent of the one million requests it has received have been successful. It is also worth noting that the original information “removed” in the successful requests doesn’t disappear – rather, the original source is no longer indexed by Google or shown in search engine results.
A recent decision in British Columbia shows that, although the RTBF hasn’t been formally implemented in Canada, the balancing of rights is active and seems to be working out just fine.
Niemela v. Malamas arises from a situation where former clients allegedly made defamatory comments about Mr. Niemela on a variety of sites. Although the comments ceased, Mr. Niemela found that his law practice was affected by these comments. Accordingly, he began an action against those who he believed had made the comments and the sites upon which the comments were published. He was successful in this claim, and thus obtained injunctions requiring the removal of 146 posts from various sites.
Where it becomes particularly interesting, however, is that he also filed suit against Google for publishing defamatory statements about him because individuals gained access to the information through being able to view snippets of the comments in the Google search results. Google asked that this action be dismissed, and ultimately it was—because the court determined that on all the facts the “snippets” were the product of an algorithm and that there was nothing to indicate that Google was actively involved in publishing the statements.
It doesn’t end there, however. When the first suit concluded, Google voluntarily removed links to the 146 sites from its Canadian search engine results. Mr. Niemela, however, was not satisfied with this – he wanted Google to remove the links from its search engine results worldwide.
In considering this request, the court set out a three-part test that Mr. Niemela must meet:
- that there is strong evidence that the words are defamatory;
- that a failure to grant the injunction will result in irreparable harm; and
- that the balance of convenience favours granting the injunction.
On the facts, it was the opinion of the court that while there was strong evidence of defamation, the case failed at the second step – (i) because the majority of searches on Mr. Niemela were made on the Google Canada; (ii) it was not obvious that the damage Mr. Niemela alleged was caused by the defamatory comments at all; and (iii) such an order would not be internationally enforceable since it was against US policy on defamation and freedom of speech.
This is a great example of how to approach RTBF – all the facts are considered in context to assess the role of the search engine results in perpetrating the injury and to ascertain whether ON BALANCE an order to remove the information (and the extent of such removal) is warranted.
In the end, what the RTBF requires is a balancing of the benefits of online information availability against the privacy of individuals.
Really – does this strike you as compromising an important public record? As undercutting freedom of expression? Even of facilitating user vanity at the expense of public information? Or is it the kind of approach that should be built into the process of digitizing and making public information about individuals in order to ensure that in our excitement about technological capacity we don’t compromise individual autonomy?
