One of the many things people are getting angry about the ‘right to be forgotten’ is in the name… something that I’ve been banging on about for some years. I talk about the right quite a lot in my book Internet Privacy Rights… so I thought I’d just give a quick flavour of it. Here are a couple of paragraphs from Chapter 7:
“This idea of a right to delete is subtly but importantly different from the idea of a ‘right to be forgotten,’ as currently under discussion by European Regulators for inclusion in the forthcoming revision of the Data Protection regime. Quite how such a right might work in practice is still not entirely clear – but the connotations of the name of the right as well as the implications of its implementation are of concern and have been subject to criticism. A right to be forgotten looks like the rewriting or erasing of history, or a kind of censorship. The right to delete is about the control of data, not about censorship – and if properly understood and implemented is not in conflict with freedom of expression. It should not be seen as a way to rewrite or conceal history or as a tool for celebrities or politicians; it is rather a basic and pragmatic right available to all.
Equally importantly, a right to delete imposes different duties on different people that what might be understood by a right to be forgotten. It changes the rights being balanced, and the duties that are imposed on others: it is balanced against businesses’ ‘right’ to hold data rather than against individuals’ rights to remember. Of course we have the right to remember things – it is much more questionable whether businesses have a right to hold our personal data. We can impose duties (both moral and legal) on businesses to delete – but we can’t impose duties on people to forget.”
So far, we seem to be stuck with the name. I wish we weren’t… but we are. That shouldn’t, however, detract from the underlying issues.
4 thoughts on “A right to delete – not a right to be forgotten…”
The right to delete is certainly a better concept, and it accords with the right to renounce yourself. If I say something stupid I have the right to publicly change my mind and present my new position, including by changing my message to nothing (i.e. deleting it). If data about me is held by others a right to delete is similar to a right to publish a reply. In either case I see it as a public and active right to accurate expression, not a negative right to obscurity.
The way this has worked out in Europe is that its not currently anything to do with deleting content its about de-listing content from the search engine results – the original content remains in place. The practicalities have been difficult with Google hiding behind ‘public interest’ and as you note this makes implementation of the policy difficult – in fact more requests have been denied than accepted – see here http://www.igniyte.co.uk/online-reputation-management/uk-one-of-top-countries-for-search-engine-removal-requests/
Actually, I think there are two different forms of the ‘right’: the right to ‘delist’ as suggested in the CJEU ruling in Google Spain, and the right to be forgotten and erasure, as set out in the proposed reform to the data protection regime. The first, as you say, is only about delisting, and already exists as far as EU law is concerned, while the second is still within the proposed but not yet finalised reform. I’ve written about this in a number of places elsewhere, but for me the best way out of the possible mess is getting the reform passed quickly, and in a way that makes the delisting right clearer and simpler!