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

[Javier Ruiz]

sorry, I couldn’t resists to comment in-line


On 30 Jun 2014, at 18:52, stef <s at ctrlc.hu> wrote:

> 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.

this is key: not removing the references to the book, but the links to him
>> 
>>    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.”

another key point: Google ranks pages, so the algorithm does “make judgements on people” this is the basis for the court to see a profile. see here for an overview of people search

http://www.abine.com/blog/2011/the-best-and-worst-of-people-search-websites/

Google claimed that it was fundamentally different to these guys, but the court said no: a Google search result is the main personal profile people have online

>> 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.

complying with human rights is not a matter of burden

>> 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.

people can access any documents via Google if they search for other terms other than the name of the person affected

>> 
>>    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 ruling was clear that public persons have less of a right to get information removed. This is misinformation.

Now a different matter would be if obscure officials found some references that potentially could lead to them being investigated for corruption. They are not public persons (yet), so here this could be used for censoring troublesome information. But someone running for office could not claim this.


>> 
>>    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.

This misses the point that just because the court didn’t mention it explicitly, a point I made in our main blog at ORG, this does not mean that the right does not apply in every single individual case to be considered. The court has not rewritten EU laws.

The

>> 
>>    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.

This is exactly what we find problematic.


>> 
>>    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.

Only if the companies are subjected to EU data protection laws.  So yes, if you make  a data business with an office in the US and a dot com domain, but you collect data on EU citizens and sell advertising in Europe you have to comply. This is immensely important for the protection of the data rights of EU citizens.


>> 
>>    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.

I cannot believe such eminent people would miss such basic points. 

The ruling applies to information on personal profiles, not on “the internet”. The point of contention here is whether Google is more like Experian or a library card cupboard. But you would not argue against the right to remove "outdated and irrelevant" information from your credit report, unless you were some American Fundamentalist of the Truth

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