A Right to be Forgotten?

A Right to be Forgotten?
Thursday July 3, 2014

So far 2014 has been a year where of some of my new clients have come to me and my team seeking help to be forgotten.  Well not completely but rather just the negative references to them on the internet.  The immediate question is whether there is such a thing as a right to be forgotten? Or to have certain things about your past forgotten?  As with most issues in cyberspace my team and I are often forced to shoehorn old laws into providing some form of remedy.  We also occasionally have to rely on rights extending well beyond the common understanding of those rights.  The great thing about the common law is that it evolves.  The downside is that evolution is usually quite some time behind developments in technology. On the other side of the world the European Court of Justice has been quite progressive and has recently ordered Google to remove links that are deemed to be “inadequate, irrelevant or no longer relevant.” To date, Google has largely been able to avoid liability for postings that appear on Google searches by reason of its general argument that it is simply a search engine and doesn’t have any responsibility for those postings.  This decision changes that – well, in the EU in any event. It all arose after a Spanish national found that searches on his name revealed a 1998 newspaper article on his financial problems.  He argued that the information was well in the past – he had paid off his debts and it was now years later – essentially that he had the right for this information  to be forgotten (no argument that it was not in any way not true or correct).  The European Court agreed and decided that search engines did have a duty to make sure data deemed “inadequate, irrelevant or no longer relevant” did not appear. This raises huge issues on who decides what is inadequate, irrelevant or no longer relevant.  Prior to this decision, one would have thought information about past financial problems may well guide how likely an individual will likely suffer financial problems in the future and therefore still have relevancy (credit check anyone?).  Watch this space for developments. In New Zealand, our Privacy Act does not currently recognise “data processors” such as Google as the EU directive does.  But it is coming up for an overhaul.  And, given that the internet effectively creates an international community changes in the EU are likely to impact on legislative and decision makers here.  In that regard the Justice and Electoral Committee released its report on the Harmful Digital Communications Bill recommending that it be passed with some amendments.   The Bill is intended to address the harm that can be created by misuse of the internet and creates offences along with an agency to monitor and investigate complaints.  I can imagine that it will be a very busy agency. In the meantime, the only clear right to be forgotten is contained in our “clean slate” legislation which is designed to allow those with less serious criminal convictions who have been conviction free for at least seven years to put their past behind them. For those who wish other things to be forgotten, there is always the ability to ask the original website to voluntarily remove information that is “stale” – and more so when that stale picture does not reflect what actually happened way back when or when it causes current prejudice.  If removed the corresponding Google search result will soon forget you or “that incident” over time or if you can’t wait for that, you can ask Google to remove it more quickly by reason of the original website having removed it.  Finally, there are some practical solutions that can be used in addition to some legal mechanisms to help people be forgotten on the internet.

By Chris Patterson, 2014

 

By Chris Patterson