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RIGHT TO BE FORGOTTEN

CYBER LAW PROJECT


RIGHT TO BE FORGOTTEN

PROJECT SUBMITTED TO:


MRS. DEBMITA MONDAL
(ASSISTANT PROFESSOR OF CYBER LAW)

PROJECT SUBMITTED BY:


RAHUL MANDAVI
Semester VII, Section A

ROLL NO. 125


SUBMITTED ON: 26.09.2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY


RAIPUR, CHHATTISGARH
RIGHT TO BE FORGOTTEN

Contents
Declaration .............................................................................................................................................. ii
Acknowledgements ................................................................................................................................ iii
Aims and Objectives .............................................................................................................................. iv
Research Methodology ........................................................................................................................... v
INTRODUCTION .................................................................................................................................. 1
What is Right to be Forgotten ................................................................................................................. 2
The European Union Perspective and the United States Perspective ..................................................... 6
Criticism.................................................................................................................................................. 8
CONCLUSIONS................................................................................................................................... 12
WEBLIOGRAPHY............................................................................................................................... 13

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Declaration

I hereby declare that this research work titled RIGHT TO BE FORGOTTEN is my own work
and represents my own ideas, and where others ideas or words have been included, I have
adequately cited and referenced the original sources. I also declare that I have adhered to all
principles of academic honesty and integrity and have not misrepresented or fabricated or falsified
any idea/data/fact/source in my submission.

(RAHUL MANDAVI)

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Acknowledgements

I, Rahul Mandavi, would like to humbly present this project to MRS. DEBMITA MONDAL. I
would first of all like to express my most sincere gratitude to MRS. DEBMITA MONDAL for her
encouragement and guidance regarding several aspects of this project. I am thankful for being given
the opportunity of doing a project on RIGHT TO BE FORGOTTEN.
I am thankful to the library staff as well as the IT lab staff for all the conveniences they have
provided me with, which have played a major role in the completion of this paper.
I would like to thank God for keeping me in good health and senses to complete this project.
Last but definitely not the least, I am thankful to my seniors for all their support, tips and
valuable advice whenever needed. I present this project with a humble heart.

- RAHUL MANDAVI
SEMESTER VII, SECTION A, ROLL NUMBER 125
BA.LLB (HONS.)

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RIGHT TO BE FORGOTTEN

Aims and Objectives

I. To understand what is Right to be Forgotten.

II. To understand the EU perspective and US perspective

III. To understand the Criticism of right to be forgotten

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RIGHT TO BE FORGOTTEN

Research Methodology

Nature of Research
This research work is descriptive in nature. It describes the perspective of Right to be Forgotten.

Sources of Data
This study is done with the help of secondary data. This secondary information has been obtained
from published sources such as books, journals, websites, newspapers, research works etc.

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INTRODUCTION

Mario Costeja Gonzlez spent five years fighting to have 18 words delisted from Google
search results on his name.

When the Spaniard googled himself in 2009, two prominent results appeared: home-
foreclosure notices from 1998, when he was in temporary financial trouble. The notices had
been published in Spanish newspaper La Vanguardia and recently digitised. But their original
purpose attracting buyers to auction had lapsed a decade ago, as had the debt. Costeja
Gonzlez asked the newspaper to remove them. When that was unsuccessful, he challenged
Google, and the case was eventually elevated to the European Court of Justice, Europes
highest court.

Forgetting and remembering are complex, messy, human processes. Our minds reconstruct,
layer, contextualise and sediment. The worldwide web is different. As Google founders
Sergey Brin and Larry Page described in their original Stanford research paper, the web is a
vast collection of completely uncontrolled heterogeneous documents.

And search engines take that corpus and give it perpetual, decontextualised freshness. Vast
catalogues of human sentiments and stories get served up at the mercurial whims of black
box algorithms algorithms that Brin and Page initially described as inherently biased
towards the advertisers and away from the needs of the consumers, in a way that is difficult
even for experts to evaluate and therefore is particularly insidious.

The crude, timeless nature of digital memory and the unquestioned power of private,
commercially motivated companies that control it was a challenge that 59-year-old Costeja
Gonzlez decided to tackle directly.1

1
https://www.theguardian.com/technology/2015/feb/18/the-right-be-forgotten-google-search

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What is Right to be Forgotten

The right to be forgotten is a concept discussed and put into practice in the European Union
(EU) and Argentina since 2006. The issue has arisen from desires of individuals to
"determine the development of their life in an autonomous way, without being perpetually or
periodically stigmatized as a consequence of a specific action performed in the past." There
has been controversy about the practicality of establishing a right to be forgotten to the status
of an international human right in respect to access to information, due in part to the
vagueness of current rulings attempting to implement such a right. There are concerns about
its impact on the right to freedom of expression, its interaction with the right to privacy, and
whether creating a right to be forgotten would decrease the quality of the Internet through
censorship and a rewriting of history, and opposing concerns about problems such as revenge
porn sites appearing in search engine listings for a person's name, or references to petty
crimes committed many years ago indefinitely remaining an unduly prominent part of a
person's Internet footprint.

Conception and proposal


Europes data protection laws are intended to secure potentially damaging, private
information about individuals. The notion of "the right to be forgotten" is derived from
numerous pre-existing European ideals. There is a longstanding belief in the United
Kingdom, specifically under the Rehabilitation of Offenders Act, that after a certain period of
time, many criminal convictions are spent, meaning that information regarding said person
should not be regarded when obtaining insurance or seeking employment. Similarly, France
values this right - le droit doubli (the right to be forgotten). It was officially recognized in
French Law in 2010. Views on the right to be forgotten differ greatly between America and
EU countries. In America, transparency, the right of free speech according to the First
Amendment, and the right to know have typically been favoured over the obliteration of
truthfully published information regarding individuals and corporations. The term "right to be
forgotten" is a relatively new idea, though on May 13, 2014 the European Court of Justice

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legally solidified that the "right to be forgotten is a human right when they ruled against
Google in the Costeja case.

In 1995 the European Union adopted the European Data Protection Directive (Directive
95/46/EC) to regulate the processing of personal data. This is now considered a component of
human rights law. The new European Proposal for General Data Protection Regulation
provides protection and exemption for companies listed as "media" companies, like
newspapers and other journalistic work. However, Google purposely opted out of being
classified as a "media" company and so is not protected. Judges in the European Union ruled
that because the international corporation, Google, is a collector and processor of data it
should be classified as a "data controller" under the meaning of the EU data protection
directive. These "data controllers" are required under EU law to remove data that is
"inadequate, irrelevant, or no longer relevant", making this directive of global importance.

Current legal frameworks

The right to be forgotten "reflects the claim of an individual to have certain data deleted so
that third persons can no longer trace them." It has been defined as "the right to silence on
past events in life that are no longer occurring." The right to be forgotten leads to allowing
individuals to have information, videos or photographs about themselves deleted from certain
internet records so that they cannot be found by search engines. As of 2014 there are few
protections against the harm that incidents such as revenge porn sharing, or pictures uploaded
due to poor judgement, can do.

The right to be forgotten is distinct from the right to privacy, due to the distinction that the
right to privacy constitutes information that is not publicly known, whereas the right to be
forgotten involves removing information that was publicly known at a certain time and not
allowing third parties to access the information.

Limitations of application in a jurisdiction include the inability to require removal of


information held by companies outside the jurisdiction. There is no global framework to
allow individuals control over their online image. However, Professor Viktor Mayer-
Schnberger, an expert from Oxford Internet Institute, University of Oxford, said that Google
cannot escape compliance with the law of France implementing the decision of the European

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Court of Justice in 2014 on the right to be forgotten. Mayer-Schnberger said nations,


including the US, had long maintained that their local laws have "extra-territorial effects"2

What is the scope of personal data?

The new proposed EU regulations define personal data in art 4 as follows: (1) 'data subject'
means an identified natural person or a natural person who can be identified, directly or
indirectly, by means reasonably likely to be used by the controller or by any other natural or
legal person, in particular by reference to an identification number, location data, online
identifier or to one or more factors specific to the physical, physiological, genetic, mental,
economic, cultural or social identity of that person; (2) 'personal data' means any
information relating to a data subject.

Data protection directive9, definitions in art. 2 are (a) 'personal data' shall mean any
information relating to an identified or identifiable natural person ('data subject'); an
identifiable person is one who can be identified, directly or indirectly, in particular by
reference to an identification number or to one or more factors specific to his physical,
physiological, mental, economic, cultural or social identity.

These definitions define personal data broadly as information that can be linked, either by
itself or in combination with other available information, to uniquely identify a natural
person. However, they leave to interpretation whether it includes information that can be used
to identify a person with high probability but not with certainty, e.g. a picture of a person or
an account of a persons history, actions of performance. Neither is it clear whether it
includes information that identifies a person not uniquely, but as a member of a more or less
small set of individuals, such as a family.

A related question is how aggregated and derived forms of information (e.g. statistics) should
be affected when some of the raw data from which statistics are derived are forgotten.
Removing forgotten information from all aggregated or derived forms may present a
significant technical challenge. On the other hand, not removing such information from
aggregated forms is risky, because it may be possible to infer the forgotten raw information
by correlating different aggregated forms.

2
https://en.wikipedia.org/wiki/Right_to_be_forgotten

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The difficulty is that the EU regulations and laws tend to be deliberately broad and general, to
allow for a range of interpretations appropriate for many different situations. However,
technical means to ensure the right to be forgotten require a precise definition of the data and
circumstances to which the right to be for forgotten shall apply.

Who has the right to request deletion of a data item?

Next, we consider the question of who has the right to request deletion of a data item. In
many cases, the answer is unambiguous, such as when a person requests that their own name,
date-of-birth and residential address are removed from a database. In other cases, however,
the question of who has the right to demand that an item should be forgotten is subject to
interpretation.

For instance, consider a photograph depicting Alice and Bob engaged in some activity at a
given time and place. Suppose Alice wishes the photo to be forgotten, while Bob insists that
it persist. Whose wishes should be respected? What if multiple people appear in a group
photo? Who gets to decide if and when the photo should be forgotten?

In another example, Bob incorporates part of a tweet he receives from Alice into a longer
blog post of his own. When Alice later exercises her right to remove her tweet, what effect
does this have on the status of Bobs blog post? Does Bob have to remove his entire blog
post? Does he have to remove Alices tweet from it and rewrite his post accordingly? What
criteria should be used to decide?

A related question is how the right to be forgotten should be balanced against the public
interest in accountability, journalism, history, and scientific inquiry? Should a politician or
government be able to request removal of some embarrassing reports? Should the author of a
scientific study be able to request withdrawal of the publication? What principles should be
used to decide, and who has the authority to make a decision?

What constitutes forgetting a data item?

Our next question concerns the question of what is an acceptable way of forgetting
information. A strict interpretation would require that all copies of the data be erased and
removed from any derived or aggregated representations to the point where recovering the

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data is impossible by any known technical means. A slightly weaker (and possibly more
practical) interpretation would allow encrypted copies of the data to survive, as long as they
cannot be deciphered by unauthorized parties. An even weaker (and more practical)
interpretation would allow clear text copies of the data to survive, as long as the data would
no longer appear in public indices, database query results, or in the results of search engines.

The European Union Perspective and the United States


Perspective

The European Union Perspective

The EU formally recognized privacy as a fundamental human right after the Second World
War, when several countries started liberating themselves from the oppressive regimes led by
the fascist and communist ideologies. The enactments of the European Convention on Human
Rights (ECHR), as well as the adoption of the Universal Declaration of Human Rights
(UDHR) at international level have prompted EU Member States to enact legislation in order
to implement the principles these acts were proclaiming. Contrary to the US that does not
have privacy included in its Constitution, and not a horizontal regulation to protect it, the EU
later formally recognized the right to privacy as an underlying, defining element of the
common space it aims at creating. The Lisbon Treaty explicitly protects privacy as a
fundamental right of EU citizens, and so does the EU Charter of the Fundamental Rights
(EUCFR) that goes even further and also establishes the right to protection of personal rights
and freedom in the processing of data as a fundamental rights. This structure represents the
basis for the recognition of a right to be forgotten by the CJEU, in the famous Google Spain-
Costeja ruling.

One might ask why specifically Europe as opposed to the US was the jurisdiction to develop
such a strong privacy protective framework given that for centuries it was the US that was
defined as the biggest democracy protective of individual liberties. Nonetheless, the general
sensitivity of European countries is grounded in their historic and cultural background, which
has shaped their attitudes towards an over-stepping state or over-intruding private

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corporations. Their past made them understand and cherish the value of privacy, having
recently seen the evil that flourishes when privacy is not protected

The United States Perspective

Following the CJEU decision and the events that followed, as well as other privacy-related
developments taking place worldwide, The United States saw themselves caught in the
middle of a massive campaign to address privacy matters. With the European Union having
declared its intention to enact more effective and standardized data privacy laws across
Europe, the US framework in place was being questioned. The broader debate on where
exactly one should draw the line between right to privacy and the freedom to speech became
pivotal for the understanding and appraisal of the right to be forgotten. While some have
criticized the European approach, others have acclaimed its adequacy and thus lobbied for
similar strategy.

The US vision on privacy and personal data has long time been conflicting with the European
view. While the general EU Member States vision is focused on the individual and his
rights, validating state intervention to ensure ones public persona, the United States applies a
market-focused strategy, with voluntary code of conduct, creating a less centralized
legislative framework, with subject specific rules, where the aim is to reduce intrusions by the
state. Europe considers personal data as an essential part of an individuals liberty, being
more prone to accepting a right to be forgotten, while the United States is known for having a
wide preference for disclosure, often offering privacy less weight than to interests that are
more necessary to protect, such as national security.

In this context if there is or could be a right to be forgotten in the US represents a


fundamental element of the debate on privacy versus free speech, specifically regarding the
resolution of conflicts their clash might entail, as well as concerning limitations the state is
empowered to impose on the right to privacy and how efficient it is in protecting its citizens.
Irrespective of the outcome of this debate, there is one element that is clear: the official
recognition of the right to be forgotten by its transatlantic neighbour has revealed the deep
flaws in the American Society, causing harsh reaction on both sides. These flaw will have to
be addressed eventually, thus state and court intervention will be required. In this context, the
implementation of an EU right to be forgotten might just be a valid solution. However, if it
would lead to evolution or regress, only time could tell.

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Criticism
Major criticisms stem from the idea that the right to be forgotten would restrict the right to
freedom of speech. Many nations, and the United States in particular (with the First
Amendment to the United States Constitution), have very strong domestic freedom of speech
law, which would be challenging to reconcile with the right to be forgotten. Some academics
see that only a limited form of the right to be forgotten would be reconcilable with US
constitutional law; the right of an individual to delete data that he or she has personally
submitted. In this limited form of the right individuals could not have material removed that
has been uploaded by others, as demanding the removal of information could constitute
censorship and a reduction in the freedom of expression in many countries. Sandra Coliver of
the Open Society Justice Initiative argues that not all rights must be compatible and this
conflict between the two rights is not detrimental to the survival of either.

The Proposed Data Protection Regulation is written broadly and this has caused concern. It
has attracted criticism that its enactment would require data controlling companies to go to
great lengths to identify third parties with the information and remove it. The Proposed
Regulation has also attracted criticism due to the fact that this could produce a censoring
effect in that companies, such as Facebook or Google, will wish to not be fined under the act,
and will therefore be likely to delete wholesale information rather than facing the fine, which
could produce a "serious chilling effect." In addition to this, there are concerns about the
requirement to take down information that others have posted about an individual; the
definition of personal data in Article 4(2) includes "any information relating to" the
individual. This, critics have claimed, would require companies to take down any information
relating to an individual, regardless of its source, which would amount to censorship, and
result in the big data companies eradicating a lot of data to comply with this.[98] Such
removal can impact the accuracy and ability of businesses and individuals to carry out
business intelligence, particularly due diligence to comply with antibribery, anticorruption,
and know your customer laws. The right to be forgotten was invoked to remove from Google
searches 120 reports about company directors published by Dato Capital, a Spanish company
which compiles such reports about private company directors, consisting entirely of
information they are required by law to disclose; Fortune magazine examined the 64 reports
relating to UK directorships, finding that in 27 (42%) the director was the only person named,
in the remaining only the director and co-directors were named, and 23 (36%) involve
directorships started since 2012.

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Other criticism revolves around the principle of accountability.

There are concerns that the Proposed Data Protection Act will result in Google and other
Internet search engines not producing neutral search results, but rather producing biased and
patchy results, and compromising the integrity of Internet-based information. To balance out
this criticism, the Proposed Data Protection Regulation includes an exception "for the
processing of personal data carried out solely for journalistic purposes or the purpose of
artistic or literary expression in order to reconcile the right to the protection of personal data
with the rules governing freedom of expression." Article 80 upholds freedom of speech, and
while not lessening obligations on data providers and social media sites, nevertheless due to
the wide meaning of "journalistic purposes" allows more autonomy and reduces the amount
of information that is necessary to be removed. When Google agreed to implement the ruling,
European Commission Vice-President Viviane Reding said, "The Court also made clear that
journalistic work must not be touched; it is to be protected." However, Google was criticized
for taking down (under the Costeja precedent) a BBC News blog post about Stan O'Neal by
economics editor Robert Peston (eventually, Peston reported that his blog post has remained
findable in Google after all). Despite these criticisms and Googles action, the companys
CEO, Larry Page worries that the ruling will be used by other governments that arent as
forward and progressive as Europe to do bad things", though has since distanced himself
from that position. For example, pianist Dejan Lazic cited the Right To Be Forgotten in
trying to remove a negative review about his performance from The Washington Post. He
claimed that the critique was "defamatory, mean-spirited, optionated, offensive and simply
irrelevant for the arts". and the St. Lawrence parish of the Roman Catholic church in Kutno,
Poland asked Google to remove the Polish Wikipedia page about it, without any allegations
mentioned therein as of that date.

Index on Censorship claimed that the Costeja ruling "allows individuals to complain to search
engines about information they do not like with no legal oversight. This is akin to marching
into a library and forcing it to pulp books. Although the ruling is intended for private
individuals it opens the door to anyone who wants to whitewash their personal history....The
Court's decision is a retrograde move that misunderstands the role and responsibility of
search engines and the wider internet. It should send chills down the spine of everyone in the
European Union who believes in the crucial importance of free expression and freedom of
information."

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In 2014, the Gerry Hutch page on the English Wikipedia was among the first Wikipedia
pages to be removed by several search engines' query results in the European Union. The
Daily Telegraph said, on 6 Aug 2014, that Wikipedia co-founder Jimmy Wales "described the
EU's Right to be Forgotten as deeply immoral, as the organisation that operates the online
encyclopedia warned the ruling will result in an internet riddled with memory holes". Other
commentators have disagreed with Wales, pointing to problems such as Google including
links to revenge porn sites in its search results, and have accused Google of orchestrating a
publicity campaign to escape the burdensome obligation to comply with the law. Julia
Powles, a law and technology researcher at the University of Cambridge, made a rebuttal to
Wales' and the Wikimedia Foundation concerns in an editorial published by Guardian,
opining that "There is a public sphere of memory and truth, and there is a private
one...Without the freedom to be private, we have precious little freedom at all."

In response to the criticism, the EU has released a factsheet to address what it considers
myths about the right to be forgotten

AGAINST EU data protection rules FOR EU data protection rules

1. INDIVIDUAL RESPONSIBILITY

Individuals need to take greater responsibility 1. MORE EFFICIENT


for the personal data they upload online.
The existing rules are confusing, with
Nobody is forcing individuals to upload
different legal jurisdictions claiming their
personal information to social networking sites.
(often contradictory) laws all apply at the
The new EU data protection rules promise to
same time. Under the new rules, businesses
deliver more than is practical. By taking
would follow one set of data protection
responsibility away from individuals and
rules: the rules of their country of
replacing it with a legal framework, they may
establishment within the EU.
create unreasonable expectations for privacy
and a false sense of safety and security online.

2. IMPRACTICAL 2. NEW TECHNOLOGY

The so-called right to be forgotten is a much- Technology moves fast. Much of the existing

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heralded part of the new data protection rules, set of data protection rules was drawn up in
but is it realistic? Once something has been the nineties, before the current trend for
published online then it can be cached, social networking and high-speed internet
archived, reposted and replicated in a thousand had taken off.
different places across the internet. At what
point does privacy become censorship? How
much should the right to be forgotten be
balanced with everybody elses right to
remember.

3. FREEDOM OF SPEECH
3. ONEROUS
Despite what critics might argue, the new
The cost of implementing the new rules will
rules in no way threaten freedom of speech.
fall disproportionately on Small and Medium
Instead, it strengthens individual rights by
Enterprises (SMEs). Larger companies will be
clarifying exactly what rights an individual
better equiped to absorb the costs of the
has with regards to the data they have
regulations. As SMEs account for 60% of
personally uploaded. It does not grant
Europes GDP, do we want to throw even more
individuals the right to order others to take
red tape at them during a recession?
down information they disagree with.

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CONCLUSIONS
On 13th May 2013, the CJEU rendered a remarkable decision in the history of the data
protection. By formally recognizing the existence of the right to be forgotten in the EU
legislative framework, it clarified the position the EU market should take a vis-a-vis personal
data and privacy, its effects being vital for the evolution of privacy regulations.

However one element is clear, unless a unitary approach to the existence and implementation
of the right is adopted, the differences in vision between the US and EU societies will
exacerbate, leading to both the intensification of already existing problems, as well as
emergence of new ones. Implementation of laws may become not only inconsistent from one
jurisdiction to another , because of that, it would turn law into a territory of unpredictability
and uncertainty. This would lead to unjustified differences in the way individuals and private
entities are treated, decreasing the overall trust in the legal system. The market would also be
harmed, as companies may be forced to take undesired measured in order to comply with the
discrepancies(e.g. moving one country to another).

Admittedly, several further questions could and may be should be asked, such as whether a
right to be forgotten should exist at all, whether a harmonization of legal perspectives would
be desirable, etc. More time and research are needed in the following years in order to answer
these questions and, specifically, assess the rightfulness of having a right to be forgotten. If,
when, and how this right should and or would be adopted is at the governments and courts
discretion. It is only later that the effects of the CJEU Google Spain-Costeja ruling will allow
an adequate assessment of its rightfulness, and further right to be forgottens fate will be
easier to appraise.

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WEBLIOGRAPHY
www.cyberlaw.com
www.cyberlawsindia.net
www.indlii.org
www.cyberlawassociation.com
www.ibef.org
www.answers.com
www.vakilno1.com

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