The Right to Be Forgotten

A new poll indicates that more than half of Canadians would like to have the right to be forgotten. What exactly does this entail?

The right to be forgotten is in some ways an extension of existing data privacy rights that would allow negative private information about a person to be removed from search engine results and so under certain circumstances. The issue of implementing this right brings to surface quite a few different values in tension. This includes its impact on freedom of expression, transparency, censorship, its interaction with the right to privacy, and influence on people’s online reputation if this right is not correctly brought in.

In January 2017, the Karnataka High Court upheld the right to be forgotten in a case involving a woman who originally went to court in order to get a marriage certificate annulled, claiming to have never been married to the man on the certificate. But after the two parties came to an agreement, the woman’s father appealed to have her name removed from search engines regarding criminal cases in the high court. The woman was worried that the search results would affect her standing with her husband, as well as her reputation in society. The Karnataka High Court approved the father’s request stating that the right to be forgotten must be exercised with cases “involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”

However there are also cases where the right to be forgotten must be exempted for the greater good of the society. 3 years ago, Japan’s supreme court rejected a man’s attempt to argue for the right to be forgotten in order to have details of his crime expunged online and to rebuild his life “unhindered” by records of his criminal past. The man said that his case appeared whenever his name and address were Googled. The supreme court said, however, that given the serious nature of his crimes, the public’s right to know outweighed the man’s right to privacy.
“Child prostitution is prohibited by the penal code and is a target of strong social condemnation,” Kyodo news quoted justice Kiyoko Okabe as saying. “The deletion (of references to the charges from search engines) can be demanded only when value of privacy protection clearly exceeds freedom of expression of search sites.”

Those in support of the right to be forgotten argue that they wish to “determine the development of their life in an autonomous way”, without being weighed down or stigmatized by something that might have occurred in their past. They say that the importance of having the right to be forgotten becomes much evident when you consider issues such as revenge porn sites and search results displaying petty incidents or crimes from the past of an individual who has been rehabilitated. Moreover, the new right would help protect teenagers who might reveal compromising information they may later come to regret.

On the other hand, there are several issues that could emerge if the right to be forgotten is implemented. Not only would it threaten the right to freedom of speech and freedom of expression, it also largely impacts the quality and open nature of the Internet through censorship. To truly understand the difference it would make, we also need to consider how data controllers such as Google and Facebook would be affected as they would become liable for “up to 2% of their global income if they fail to remove photos that people post” then later regret, regardless of whether the photos were already widely distributed.

It makes sense why there’s a bit of a controversy around the topic of whether the right to be forgotten should be implemented by the Canadian federal court. There are many cases where a petty crime from a person’s adolescence tarnishes their chance at a clean record and comes back to haunt them for the rest of their lives, especially when seeking employment. This topic reminds me of Ryerson University’s Student Union president of 2019 who pulled a $200,000 credit card scandal alongside the VP of operations. While I wouldn’t call this a petty crime, the student’s name will forever be attached with this incident and it concerns me that he might have completely thrown away his chance at a career for frivolous partying. Also, imagine how different last year’s smear campaign would have been if we did have the right to be forgotten — Trudeau’s brownface/blackface pictures might not have surfaced. Again, as stated in the example given previously, there are certain things you wouldn’t want people to have forgotten, for the safety of the society. No one would want a pedophile or man convicted of child pornography to be able to erase his past and “start anew” in their neighbourhood.

If I were to testify as an expert on technology before the Canadian parliament designated committee overseeing the issue, the three options I’d bring up would be: Have a case-by-case subjective system that wouldn’t let the right to be forgotten to be applied to acts that exceed a certain penalty. Have the right to be forgotten exist right away for minors who tend to post online and do stupid things as kids. Third, instead of letting Google decide what should and should not be removed, a separate body needs to be set up with judicial oversight to handle requests, or it could strengthen defamation and privacy laws to discourage harmful information from being published in the first place. This last policy is the one that I think should be adopted in Canada as it would be different from Europe’s approach which has a limiting inability to require removal of information held by companies outside the jurisdiction.