Right to be forgotten in the Digital Era

Your online persona will be part of the Internet forever. Everything you do online will never disappear. Words become weapons that can destroy real lives. Your life doesn’t belong to you anymore. It belongs to all of us.

The “right to be forgotten” allows individuals to seek the removal of personal data which can become no longer traceable to third parties. This right gives people the possibility of having data, videos, photographs no longer be found on the Internet while searching for their names.

Experts speak about the “right to privacy” as an absolute protection tool, but considering the new online challenges that we are facing, this international right can no longer predict every change in our society. And only the right to be forgotten seeks to resolve the issue of having an online persona that never leaves the Internet.

The differences between the right to privacy and the right to be forgotten are significant. While the right to privacy calls for the protection of private information that is yet unknown to the public, the right to be forgotten involves removing personal information that is publicly available and could affect one’s reputation, self-being, or self-image in the society.

This concept can be traced back to the old French jurisprudence under the name of “le droit à l’oubli”. Also, at the roots of English criminal law, there is a strong belief that after a regulated period of time, convicted criminals shouldn’t be affected by their past criminal activities while seeking employment or obtaining insurance. Offenders who served their sentences have a right to integrate themselves into society and as part of it, they have the right to erase personal information regarding their convictions.

Highly influenced by the European doctrines, the European Union became the first body to regulate online protection for all individuals. This right was firstly mentioned in Article 12 of the Directive 95/46/EC and later on, in a draft for the “European Data Protection Regulation” made public by the European Commission to improve the original Directive by detailing specific protection mechanisms. Nevertheless, nothing significantly changed until the European Court of Justice landmark decision in the Costeja case (C-131/12) which reaffirmed strongly the individual’s right to request the removal of specific results for queries that include their name.

In 1998 an ordinary Spanish citizen, named Mario Costeja Gonzalez, was required to put his property at auction as a result of being in serious financial trouble. Everything was made public by an online media outlet called La Vanguardia. Two decades later, Gonzalez had overcome his financial issues and paid his debt entirely, but he was left with a permanent stain on his reputation. At first, he made a request to the Spanish Agency of Data Protection to have the link of the article removed but only a complaint against Google was accepted. In response, Google sued Gonzalez in his home country. And ultimately, the case was sent to the European Court of Justice who ruled in favor of Mr. Gonzalez. This is the story of how Google became legally obligated to comply with EU data privacy laws and create a sustainable system for international requests to remove personal data. Today, any European can fill a takedown request to search providers to have certain personal data unavailable when searching online.

Search engines still have a discretionary right to refuse an abusive request, if the public’s interest in the information is greater than the privacy rights of the individual. For instance, a search engine like Google may be looking at requests involving financial scams, professional malpractices, criminal convictions, or public conduct of government officials.

Many powerful individuals may use this opportunity to erase all mentions of criminal activity or criminal affiliation, but the public’s interest must prevail over a simple whim.

An individual must complete the following steps to successfully file a takedown request:

If the request is approved, the content will no longer appear in search results but it will stay online. In reality, the “removed” data is no longer traceable when using European Google search engines, but Internet users can still found the same information using, for example, American or Asian types of engines. The EU has been trying to spread the process all over the globe to eliminate this problem, but with no reported successes so far.

Currently, the right to be forgotten is still highly debated on the international scene with no worldwide accepted legal standards. The critics sustain that the right to be forgotten raises questions of territorial sovereignty, and argue that censoring certain information through search engines is a violation of freedom of expression, freedom of the press, freedom of speech and the right to know. But should those rights be favored over the right to be forgotten? Which right comes first? And who decides? After all, each case is unique, and a universal recipe is unlikely to reach an international consensus.

People are designed to be different and everyone matters regardless of who they are. And their stories must be analyzed accordingly to make fair assessments.

Children these days live in a strange environment where everything they do online is constantly listed, monitored, and archived. Search engine algorithms use their online activity, as they say, only to meet the needs of their virtual users. This unfair reality causes the harmless actions of today to become the reason for severe scrutiny tomorrow. The implementation of digital education in schools, with an emphasis on the power of having an online persona and how to control it, is of extreme importance in today’s day and age.

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