Today, ARTICLE 19 is launching a new policy brief: The “Right to be Forgotten”: Remembering Freedom of Expression.
In this policy brief, ARTICLE 19 provides comprehensive recommendations on how to ensure protection of the right to freedom of expression with regard to the so-called “right to be forgotten.”
The “right to be forgotten” usually refers to a remedy which in some circumstances enables individuals to demand from search engines the de-listing of information about them which appears following a search for their name. It can also refer to demands to websites’ hosts to erase certain information.
More broadly, it has been considered as a right of individuals “to determine for themselves when, how, and to what extent Information about them is communicated to others” or as a right that gives the individual increased control over information about them. It has been categorised as a privacy right even though it applies to information that is, at least to some degree, public.
The “right to be forgotten” is expressly recognised neither in international human rights instruments nor in national constitutions. Its scope remains largely undefined: it ranges from a more limited right protected by existing data protection law to broader notions encompassing the protection of reputation, honour and dignity. It came to the fore with the decision of the Court of Justice of the European Union (CJEU) in the Google Spain case of 2014. In this case, the CJEU held that data protection principles applied to the publication of search results by search engines and that individuals had a right to request that search engines operating in the EU de-list search results obtained by a search for their name. However, this issue is not limited to Europe, as since the CJEU judgement, several states outside of Europe either have adopted a dedicated “right to be forgotten” law or have been looking to adopt new laws on the subject.
ARTICLE 19 is concerned by these developments and the implications of the “right to be forgotten” for the right to freedom of expression. Hence, in this policy brief, ARTICLE 19 proposes a framework solution to the issues raised by the “right to be forgotten,” grounded in international human rights law. ARTICLE 19 does not advocate for the recognition of the “right to be forgotten” in domestic or international standards. Instead, this policy brief offers detailed recommendations on how to strike a proper balance between the right to freedom
of expression and other rights in this context, and what substantive and procedural safeguards should be put in place in order to protect the right to freedom of expression, if such a “right” is recognised and granted.
1. Existing remedies should be pursued such as those offered by privacy and defamation laws, and remedies under the terms and conditions of intermediaries, instead of recognising the “right to be forgotten,”;
2. Any “right to be forgotten” should be strictly limited, as certain minimum requirements must be met for such a right to be compatible with the right to freedom of expression, both in terms of substance and procedure. Specifically, the “right to be forgotten” should be limited to private individuals and should be actionable only against search engines (as data controllers), rather than actionable against hosting services or content providers. Any protections should also make explicit reference to the right to freedom of expression as a fundamental right with which such protections must be balanced. Further, decisions on “right to be forgotten” requests should only be issued by courts or independent adjudicatory bodies;
3. A strict seven-part test for balancing the right to freedom of expression and the “right to be forgotten” should be applied, taking into consideration:
- Whether the information in question is of a private nature;
- Whether the applicant had a reasonable expectation of privacy, including the consideration of issues such as prior conduct, consent to publication or prior existence of the information in the public domain;
- Whether the information at issue is in the public interest;
- Whether the information at issue pertains to a public figure;
- Whether the information is part of the public record;
- Whether the applicant has demonstrated substantial harm;
- How recent the information is and whether it retains public interest value;
4. Minimum procedural requirements should be observed, including
- Only courts or independent adjudicatory bodies should decide whether “right to be forgotten” requests should be upheld;
- Data publishers should be notified of “right to be forgotten” requests and should be able to challenge these requests;
- De-listings should be limited in scope, including geographically;
- Relevant service providers, public authorities and the courts should all publish transparency reports on “right to be forgotten.”