[MyData & Open Data] Ann Cavoukian and Christopher Wolf: Sorry, but there’s no online ‘right to be forgotten’

[stef]

src: http://www.ipc.on.ca/english/About-Us/Whats-New/Whats-New-Summary/?id=322

>    This morning's National Post features an op-ed written by Ontario's
> Information and Privacy Commissioner Dr. Ann Cavoukian and the founder and
> co-chair of the Future of Privacy Forum think tank Christopher Wolf commenting
> if a recent European Court of Justice judgement requiring Internet search
> providers to remove links to embarrassing information should also be applied to
> Canadian Citizens.  The full article is below:
> 
>     A man walks into a library. He asks to see the librarian. He tells the
> librarian there is a book on the shelves of the library that contains truthful,
> historical information about his past conduct, but he says he is a changed man
> now and the book is no longer relevant. He insists that any reference in the
> library’s card catalog and electronic indexing system associating him with the
> book be removed, or he will go to the authorities.
> 
>     The librarian refuses, explaining that the library does not make judgments
> on people, but simply offers information to readers to direct them to materials
> from which they can make their own judgment in the so-called “marketplace of
> ideas.” The librarian goes on to explain that if the library had to respond to
> such requests, it would become a censorship body — essentially the arbiter of
> what information should remain accessible to the public. Moreover, if it had to
> respond to every such request, the burden would be enormous and there would be
> no easy way to determine whether a request was legitimate or not. The indexing
> system would become swiss cheese, with gaps and holes. And, most importantly,
> readers would be deprived of access to historical information that would allow
> them to reach their own conclusions about people and events.
> 
>     The librarian gives this example: What if someone is running for office but
> wants to hide something from his unsavory past by blocking access to the
> easiest way for voters to uncover those facts? Voters would be denied relevant
> information, and democracy would be impaired.
> 
>     The man is not convinced, and calls a government agent. The government
> agent threatens to fine or jail the librarian if he does not comply with the
> man’s request to remove the reference to the unflattering book in the library’s
> indexing system.
> 
>     Is this a scenario out of George Orwell’s Nineteen Eighty-Four? No, this is
> the logical extension of a recent ruling from Europe’s highest court, which
> ordered Google to remove a link to truthful information about a person, because
> that person found the information unflattering and out of date. (The scale of
> online indexing would of course be dramatically more comprehensive than a
> library indexing system.)
> 
>     The European Court of Justice ruled that Google has a legal obligation to
> remove, from a search result of an individual’s name, a link to a newspaper
> containing a truthful, factual account of the individual’s financial troubles
> years ago. The individual, a Spanish citizen, had requested that Google remove
> the newspaper link because the information it contained was “now entirely
> irrelevant.” This concept has been described as the “right to be forgotten.”
> While one may have sympathy for the Spanish man who claimed he had
> rehabilitated his credit and preferred that his previous setback be forgotten,
> the rule of law that the highest European Court has established could open the
> door to unintended consequences such as censorship and threats to freedom of
> expression.
> 
>     The European Court relied on the fundamental rights to privacy and to the
> protection of personal data contained in the Charter of Fundamental Rights of
> the European Union, without so much as citing, much less analyzing, one of the
> other fundamental rights contained in the Charter, namely the right to free
> expression.
> 
>     Moreover, the Court did not provide sufficient instruction on how the
> “right to be forgotten” should be applied. When do truthful facts become
> “outdated” such that they should be suppressed on the Internet? Do online
> actors other than search engines have a duty to “scrub” the Internet of
> unflattering yet truthful facts? The Court didn’t say. The European Court of
> Justice has mandated that the Googles of the world serve as judge and jury of
> what legal information is in the public interest, and what information needs to
> be suppressed because the facts are now dated and the subject is a private
> person. Under penalty of fines and possibly jail time, online companies may err
> on the side of deleting links to information, with free expression suffering in
> the process.
> 
>     The European Court’s own Advocate General argued that a right to be
> forgotten “would entail sacrificing pivotal rights such as freedom of
> expression and information” and would suppress “legitimate and legal
> information that has entered the public sphere.” Further, the Advocate General
> argued, this would amount to “censuring” published content. In the First
> Amendment parlance of the U.S. Supreme Court, the European Court’s decision may
> amount to “burning the house to roast the pig.”
> 
>     You might think this problem is limited to Europe, and that the search
> results in North America will remain unaffected by the Court’s ruling. But
> earlier European efforts to cleanse the Internet (in the context of hate
> speech) suggested that even materials on North American domains would be
> subject to European law.
> 
>     As privacy advocates, we strongly support rights to protect an individual’s
> reputation and to guard against illegal and abusive behaviour. If you post
> something online about yourself, you should have the right to remove it or take
> it somewhere else. If someone else posts illegal defamatory content about you,
> as a general rule, you have a legal right to have it removed. But while
> personal control is essential to privacy, empowering individuals to demand the
> removal of links to unflattering, but accurate, information arguably goes far
> beyond protecting privacy. Other solutions should be explored to address the
> very real problem posed by the permanence of online data.
> 
>     The recent extreme application of privacy rights in such a vague, shotgun
> manner threatens free expression on the Internet. We cannot allow the right to
> privacy to be converted into the right to censor.

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otr fp: https://www.ctrlc.hu/~stef/otr.txt