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The Right to be Forgotten

Google argues that the global application of an EU Regulation could lead to censorship in countries which are not entrenched democracies. 

by Ruwantissa Abeyratne
What we do in life echoes in eternity ~ Maximus (Russell Crowe), “Gladiator” (2000)
( September 13, 2018, Montreal, Sri Lanka Guardian) Should a crime a human commits remain perpetually in the minds of others?  In April 2018 The Guardian reported that a judge in the United Kingdom had ordered a search engine to de link from websites reports of a businessman   who had been convicted of an offence and served punishment.  The Judge said: “There is not [a] plausible suggestion … that there is a risk that this wrongdoing will be repeated by the claimant. The information is of scant if any apparent relevance to any business activities that he seems likely to engage in”.
The “right to be forgotten” cases, as they are called, essentially bring to bear a sustained conflict between a person’s right to privacy and the right of the public to be informed.  In 2014 The European Court of Justice sided with a Spanish citizen who petitioned the court that he wanted search results to a newspaper article (which appeared in 1998) – which claimed   that he had sold his property to pay off his debts –  to be taken down.   The Court underscored the importance in Europe of protecting peoples’ right to privacy and personal data against information made available to the public that was “inadequate, irrelevant or no longer relevant”.  The Court further added that privacy was preeminent over “the economic rights of the operator of the search engine, but also the interest of the general public in finding that information upon a search relating to the data subject’s name”.
This however, is not an absolute rule, as the preponderant right of a society is to be aware of any potential dangers to its security and that any information that may potentially threaten peoples’ security and safety must not be taken down.  The European Union’s General Data Protection Regulation (GDPR) which came into force in March 2018 requires companies that handle personal data of EU citizens to protect data by: requiring the consent of subjects for data processing; anonymizing collected data to protect privacy; providing data breach notifications; safely handling the transfer of data across borders; and; requiring certain companies to appoint a data protection officer to oversee GDPR compliance.
The contentious issue that arises with the GDPR requirement is that it applies to any company which markets or provides goods or services in the EU irrespective of that company’s location.  This means that the Regulation has extra territorial application globally. In other words, companies based outside the EU must apply the same rules when offering services or goods or monitoring behaviour of individuals within the EU.  Digital Guardian explicitly says: “The General Data Protection Regulation not only applies to businesses in the EU; all businesses marketing services or goods to EU citizens should be preparing to comply with GDPR as well. By complying with GDPR requirements, businesses will benefit from avoiding costly penalties while improving customer data protection and trust”. Penalties for violation could be up to 4% of a company’s annual global revenue.
Article 17 of GDPR resonates the “right to be forgotten principle” as it pertains to erasure of personal data in certain circumstances. The provision gives the data subject the right to have his personal data erased without undue delay and the repository that holds such data is legally obligated to erase the data: if the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; the data subject withdraws consent on which the processing is based; the data subject objects to the processing of the data; or the data has been obtained illegally and without the consent of the data subject.
However, these legal obligations are overridden if processing is necessary for: exercising the right of freedom of expression and information; compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; for reasons of public interest in the area of public health; for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes  in so far as the right is likely to render impossible or seriously impair the achievement of the objectives of that processing; or for the establishment, exercise or defence of legal claims.
Google argues that the global application of an EU Regulation could lead to censorship in countries which are not entrenched democracies. Google’s lawyer Kent Walk has said: “no one country should be able to impose its rules on the citizens of another country, especially when it comes to linking to lawful content. Adopting such a rule would encourage other countries, including less democratic regimes, to try to impose their values on citizens in the rest of the world”
On 12 September 2018, a panel of 15 judges heard evidence from 70 or more stakeholders in Luxembourg, particularly to examine a request of France’s Commission Nationale de l’Informatique et des Libertesthat the European Court of Justice clarifies whether the delisting of websites carrying harmful, irrelevant and outdated information should extend beyond the French version of Google’s search engine to all versions across the world.
This question boils down to what is called “extra territorial” application of laws by one country on another or the world.  The key here is that the internet is not territorial, does not have nuances of State sovereignty and, above all, is not governed in terms of the dissemination of information by international treaty. Extra territorial jurisdiction is exercised when a State (or in this case a community of States) seeks to apply its laws outside its territory in such a manner as may cause conflicts with other States. It can be invoked   under the “effects theory” of extra territorial jurisdiction which goes beyond the principles of sovereignty.  This theory relates to a situation where a State assumes jurisdiction beyond its territorial limits claiming the behaviour of a party is adversely affecting the interests of that State by producing “effects” within its territory. It does not matter whether all the conduct and practices take place in another State or whether part of the conduct is within the State adopting the legislation.  In the latter instance, the conduct of the party would come under the “objective territorial principle” where part of the offence takes place within the jurisdiction.
The effects doctrine has been robustly applied in the United States, particularly in the field of antitrust legislation.   Judicial recognition of the principle lay in the premise that any State may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the State reprehends.   This blanket principle was later toned down within the United States to acknowledge growing international protests against the wide ranging and arbitrary manner in which the principle could be applied.  The modification involved the need to prove intentional conduct and the fact that the effect should be substantial for the doctrine to be applied.
It is also noteworthy that the Third Restatement of Foreign Relations Law of The United States provides that a State may exercise jurisdiction based on the effects in the State when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable. Reasonableness is based on the extent the enacting State limited its jurisdiction to obviate conflict with the jurisdiction of the State affected to the extent possible.
Whatever the legal determinations are pertaining to the global right to be forgotten, the issue  remains more a moral consideration, whether a person deserves to have the right to have earlier conduct publicly expunged after having paid his debt to society. The past cannot be forgotten; nor can it be obliterated.  However, one must grapple with the fundamental moral and ethical issue as aptly put byRichard J. Peltz-Steele in The Washington Post of 21 November 2014: “Behind the trappings of European regulation, the “right to be forgotten” is really a right to be forgiven; a right to be redeemed; or a right to change, to reinvent and to define the self anew. A person convicted of a crime deserves a chance at rehabilitation: to get a job or a loan. A person wrongly charged or convicted deserves even more freedom from search-engine shackles. We can diverge from Europe over bureaucratic process. And we can debate and decide for our society when the right to be forgotten is forfeit. But we should adopt — we should own — the concept of erasure online. For there could be nothing more American than a second chance in a new world”.

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