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Forgetting online

February 28, 2012

The court decision stokes debate on who gets a 'right to be forgotten.' Meanwhile, the European Union is considering an overhaul of privacy legislation that would include such a right.

ARCHIV - Auf dem Display eines iPhones ist die Startseite von Google Deutschland darstellt, aufgenommen am 19.03.2010. Die EU-Kommission leitet gegen den Internet-Konzern Google ein Missbrauchsverfahren ein. Die EU-Wettbewerbshüter werden untersuchen, ob Google seine marktbeherrschende Stellung bei der Online-Suche missbraucht haben könnte, teilte die EU-Kommission am Dienstag (30.11.2010) in Brüssel mit. Foto: Soeren Stache dpa +++(c) dpa - Bildfunk+++
Google auf IphoneImage: picture-alliance/dpa

Although a Spanish court last Thursday dismissed one company's "right to be forgotten" case against Google, the ongoing legal standoff will continue. Voices are rising over the issue as the European Commission this past January proposed a vast overhaul of data protection laws, including guaranteeing citizens a "right to be forgotten."

Spanish company Alfacs Vacances, which runs the Los Alfaques camping ground on the idyllic Mediterranean coast not far from Barcelona, had sued Google Spain to prevent the search engine from displaying gruesome images of charred bodies from a deadly gas explosion in the late 1970s.

Owners of the campground at Los Alfaques - which had no connection with causing the accident - argued that because horrific photos of the accident continue to appear high on the page in search results for "Los Alfaques camping," its business reputation was being harmed.

Although the Spanish court ruled that Google Spain as a mere subsidiary lacked standing to be sued, the California-based Internet giant - and other Internet platforms - may be seeing more time in court as the European Union codifies this proposed right.

Remembering to forget

Viktor Mayer-Schönberger, a professor at the Oxford Internet Institute and author of "Delete: The Virtue of Forgetting in the Digital Age," told DW that the problem in the Los Alfaques case, as in many others, is that "one almost accidentally stumbles across old information that has no relevance."

In the modern age, where the Internet compresses time, forgetting "functions to enable us to act in the present," Mayer-Schönberger said.

Mayer-Schönberger describes the right to be forgotten as "a big and a growing issue," with the trend in the European Union "toward regulatory action for a right to be forgotten."

EU Justice Commissioner Viviane Reding, upon unveiling the European Commission's proposed overhaul of data protection rules at the end of last month, said in a statement that "the protection of personal data is a fundamental right for all Europeans."

European Commissioner Viviane Reding
Viviane Reding unveiled an overhaul of EU data protection rules at the end of JanuaryImage: picture-alliance/dpa

The current proposal to reform the EU data protection directive of 1995 would, among other things, guarantee people the right to withdraw data they themselves have published on the Web.

"It is clear that the right to be forgotten cannot amount to a right of the total erasure of history," Reding said last month.

Mayer-Schönberger added that the issue is very much about "how we strike a balance between free speech and privacy."

Natural versus corporate person

In Spain, with its already codified data protection laws and strong data protection authority, there are more than 100 right-to-be-forgotten cases pending against Google.

Cristina Sanchez-Tembleque Cayazzo, an attorney with the Madrid branch of Ejica, a law firm specialized in technology and media, emphasized the importance of making a distinction between a natural person and a company.

The pending Google challenges are different from the Los Alfaques case because "the Spanish Data Protection Authority only prosecutes cases involving the personal data of individuals," Sanchez-Tembleque told DW.

Sanchez-Tembleque sees privacy and business reputation as separate issues, and thinks that the Los Alfaques case will have to go through a different law process than cases with human being plaintiffs.

But Jeffrey Rosen, a law professor at George Washington University in Washington, D.C., sees the Los Alfaques case "as a reminder of how amorphous and ill-defined the right to be forgotten is, and of how much litigation it will generate."

Economic interests

Peter Fleischer, Google's global privacy counsel, in an company blog post earlier this month said people should retain a right to delete content they generate, but claims "practical and legal limits to what can be expected of hosting platforms."

"Ultimately, responsibility for deleting content published online should lie with the person or entity who published it," he added.

Rosen, calling Google a "neutral platform," said it could lose 1 percent of its yearly revenues to right-to-be-forgotten claims, and could start self-censoring to avoid them.

Google Global Privacy Counsel Peter Fleischer
Peter Fleischer details Google's concerns on the right to be forgotten

But Mayer-Schönberger sees Internet platforms as far from neutral.

"Advertising is based on collecting and keeping as much info as you can," Mayer-Schönberger said, pointing to ongoing privacy concerns with Facebook as a related case.

"We need the equivalent of seatbelts, in the digital age as well," he added.

Rosen contends that the EU regulation sweeps far more broadly than acknowledged, and reflects a need to precisely define the legal terms involved.

Case-by-case basis

The right to be forgotten has also been playing out in German courts.

Wolfgang Werle and Manfred Lauber, half-brothers who were convicted of killing well-known Bavarian actor Walter Sedlmayr and then later released on parole, have brought a number of cases against Internet platforms that have hosted information associating them with the crime.

Dominik Boecker, a technology lawyer in Cologne, described two cases he worked on relating to the half-brothers' claims.

At a lower court, the brothers prevailed in one case. But in the other, the German Federal Court of Justice ruled that accurate media reports do not have to be retracted after the fact.

Boecker said that the balance between privacy and free speech rights always depends on the context, in particular on the level of public interest present, and will continue to be adjudicated on a case-by-case basis.

The Spanish attorney, Cristina Sanchez-Tembleque Cayazzo, echoed the need for balance and examination of each specific case. But the problem, she told DW, is that for example with a Google search, "there is no case-by-case algorithm."

Digital 'expiration date'

Technical solutions for Internet platforms are likely on the horizon as Web users become increasingly concerned with privacy.

Mayer-Schönberger described a number of potential "digital speedbumps" that could help to strike the right balance.

Facebook under a magnifying glass
Facebook is facing ongoing scrutiny over privacy concernsImage: dapd

For example, Web search results could come up chronologically, he said. If this were the case, the charred people at the Los Alfaques campground "would come up on page 20" instead of at the top of the search, he said.

Or older search results could appear as "grey, withered," he added.

Mayer-Schönberger's proposal for a digital expiration date has Rosen's support.

"These kinds of technological solutions are the most promising ones," Rosen said, to "put truthful but embarrassing information into context."

Author: Sonya Angelica Diehn
Editor: Cyrus Farivar

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