Rolf H. Weber The Right to Be Forgotten More Than a Pandora’s Box? by Rolf H. Weber,* Dr.; Chair Professor for International Business Law at the University of Zurich and Visiting Professor at the University of Hong Kong Abstract: Recently, political voices have ple of free speech. Therefore, its scope needs to be stressed the need to introduce a right to be forgot- evaluated in the light of appropriate data protection ten as new human right. Individuals should have the rules. Insofar, a more user-centered approach is to right to make potentially damaging information dis- be realized. “Delete” can not be a value as such, but appear after a certain time has elapsed. Such new must be balanced within a new legal framework. right, however, can come in conflict with the princi- Keywords: Data protection; delete; free speech; privacy; privacy enhancing technologies; user-centered ap- proach © 2011 Rolf. H. Weber Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Rolf H. Weber, The Right to Be Forgotten: More Than a Pandora’s Box?, 2 (2011) JIPITEC 120, para. 1. A. Introduction specific “case” is described in Mayer-Schönberg- er’s book Delete: The Virtue of Forgetting in the Digital 4 1 In 2010 a first legislative project was developed in Age. Stacy Snyder, a 25-year-old former education France that envisaged the creation of a “right to be student at Millersville University School of Educa- forgotten” online.1 Subsequently, not much concrete tion in Pennsylvania, was confronted with a pro- information was made available about the proposed fessor who became aware of a picture of her from law, which was intended to force online and mobile a party posted on her MySpace web page, showing firms to dispose of e-mails and text messages after her drinking from a plastic cup and wearing a pi- an agreed-upon length of time or at the request of rate’s hat (captioned “drunken pirate”). The profes- the individual concerned. In November 2010, the EU sor informed the school authorities dealing with Sta- Commission took up the idea of introducing a right cy’s file, who thereupon refused to grant the young to be forgotten in the context of the ongoing revision woman the diploma she had earned, stating that her of the Data Protection Directive 95/46;2 the outcome conduct was “unprofessional” and that she had, al- of the vague proposal is still uncertain. beit indirectly, encouraged young people to drink. Stacy’s attempt to reverse the decision in court on 5 2 The right to be forgotten in the context of digital the basis of her right of free speech failed. memory and/or data retention was only recently proposed as a fundamental right; however, its in- 3 As mentioned, the term “right to be forgotten” has herent background concept has been a discussion only recently been created. A decade ago, however, topic in Continental Europe and in the United States a similar term, namely the “right to forget,” was al- 6 for many years. The main example in court prac- ready a topic of debate. But viewed precisely, the tice and legal doctrine concerned persons who were active and the passive side of the “forget” medal are convicted in court and who wanted to make this in- not identical, and the right to be forgotten should not formation disappear after a certain time period had be confused with the right to forget as happens fre- 7 elapsed.3 In the United States, the lists of sexual of- quently in blog discussions: The “right to forget” fenders living in the neighborhood that are partly refers to the already intensively reflected situation published on the Internet are topics of debate. A that a historical event should no longer be revital- 2 120 2011 The Right to Be Forgotten ized due to the length of time elapsed since its occur- ficial or unofficial nature) being drawn to public at- rence; the “right to be forgotten” reflects the claim tention:13 Since criminals do not remain of interest of an individual to have certain data deleted so that to the public indefinitely, the public should not have third persons can no longer trace them.8 Therefore, access to the respective records after a certain time the right to be forgotten is based on the autonomy period.14 Insofar, court practice acknowledges an in- of an individual becoming a rightholder in respect of dividual’s right to be forgotten as a criminal.15 For personal information on a time scale; the longer the the courts, the discretion in interpreting the term origin of the information goes back, the more likely “substantial amount of time” that has passed since personal interests prevail over public interests. the occurrence of criminal activity, therefore remov- ing the interest of the public in being reminded of 4 This contribution looks at the direct and indirect tra- these events, is rather broad; obviously the evalua- ces that lead from the general personality right to a tion depends upon the circumstances, such as which specific right to be forgotten, it analyzes some key information is no longer of public interest and pos- data protection concepts in light of the actual im- sibly counterproductive to the goal of rehabilitat- plementation of such a new and fundamental right, ing the person in question.16 Consequently, privacy and finally it takes possible legal and technological concerns might preclude the media from revealing limits of this proposed right into account. certain truths and previously publicized facts if the information is no longer newsworthy, but when the information about the past is still needed to protect B. Substance of the Right the public in present times, a right to be forgotten to Be Forgotten cannot be invoked.17 8 Similar discussions are also being held in other Con- tinental European countries. In Germany, for exam- I. Basis in the Right of ple, following the famous Lebach decision of the Con- the Personality stitutional Court,18 several court proceedings have taken place in view of a possible interpretation of the right to be forgotten;19 court practice has thereby ap- 1. Continental Europe plied a differentiated approach, evaluating the cir- cumstances of the case (push or pull service, im- 5 In Continental Europe, the right to be forgotten can portance of criminal activity, etc.). Apart from the be considered as being contained in the right of the question how relevant criminal records should be af- personality, encompassing several elements such as ter the expiration of a certain time period, aspects dignity, honor, and the right to private life. Manifold of involvement in political movements (for exam- terminologies are used in the context of the right ple, during World War II or as a member of the rul- of personality – mainly the right for the (moral and ing party in the former German Democratic Repub- legal) integrity of a person not to be infringed and lic) are also debated issues. Furthermore, the Spanish for a sphere of privacy to be maintained and distin- Data Protection Authority (EAPD) recently accused guished. The (privacy) right to indeed keep certain Google of invading the personal privacy of users, ar- guing that the company was in breach of the right to things secret has already been arguably extended 20 to the right of Internet users not to make their ac- be forgotten as acknowledged in the laws of Spain. tivity trails available to third persons.9 Essentially, 9 During the last decades, national court practice has rightholders are relying on their own autonomy to been condensed and further developed in the judg- individually decide on the possible use of their own ments of the Human Rights Court in Strasbourg data.10 based on the European Convention on Human Rights 21 6 In most Continental European countries, there is (hereinafter ECHR). The Human Rights Court in wide court practice available delineating the extent Strasbourg has rendered many decisions by apply- to which (Internet) media have a right of their own ing a balance-of-interests test between the funda- to reveal information about a specific person, who mental right to privacy (Art. 8 ECHR) and the free- in turn may claim the right to enjoy the protection dom of speech (Art. 10 ECHR); however, the right to of private life (privacy).11 be forgotten has not yet been specifically addressed. In the case of Caroline von Hannover, who (unsuc- 7 Switzerland is a good example for the development cessfully in Germany) initiated legal actions against of the right to be forgotten. After a first ground- photographers who took pictures from her daily life breaking decision forbidding an artist to present a involving activities of a purely private nature, the painting of the famous late Swiss painter Hodler in Human Rights Court at least expressed the opinion an art gallery,12 courts have mainly dealt with situ- in the field of traditional media that the information ations in which a convicted person wanted to avoid distribution should be limited by the interest of the information about earlier criminal records (of an of- concerned person not to make public very personal or even intimate information, and that the state 2 121 2011 Rolf H. Weber would be obliged to protect this interest.22 Closer to rally” have been done under the aspects of person- the “forgetting” topic, the Human Rights Court re- ality rights as described above (and would probably cently clarified the relation of the freedom of media not have caused any specific problems related to the vis à vis the rights of privacy in a specific case (relat- digital memory of the Internet).