The Right to Be Forgotten vs the Right to Remember

Can't say you weren't warned, data hounds. The pressure has been building for a couple of years. It has become apparent that the general public was getting fed up with the misuse of personal information.

The signs were manifest: from amateur athletes demanding to be paid to foreign heads of state giving the US the cold shoulder over intelligence intrusions to the average consumer wondering why everyone seemed to be grabbing and making money from their data but them. And that was even before the Edward Snowden NSA revelations.

And the danger was always that someone somewhere would come up with a 'solution' far worse than an industry gorging itself on free data could imagine. So now it has happened, unsurprisingly, in Europe.

The right to be forgotten takes precedence over Google and Facebook and American Express and Amazon and Banco Santander and Alibaba and everyone else's 'right to remember' while profiting from same.

When it comes to rights and liberties, this is about as fundamental as it gets. 

As a civilization, should we be pleased? Hardly. The complications and implications havent even begun to emerge. Whose right is predominant - the individual's or society's - and how does one even decide between two of each or one vs the other? There will almost certainly be as much abuse of the right to forget as there has been of the right to remember.

Meanwhile those who think this is a victory may be among the first to complain when they realize how manifestly their ability to gather information has been circumscribed.

So this is, in an ironic way, the perfect realization of internet freedom taken to its illogical extreme: we have used the power vested in us to eliminate any input we dont want to the extent that our refusal to compromise for the common good - remember that? - may have caused common harm. JL

Jason Abbruzzese and Lorenzo Fraceschi-Bicherai comment in Mashable:

"There is all the risk in the world that this will be used by all kinds of people to demand that various information that they find inconvenient should be taken down."
Should the Internet forget?
Do people have the right to have outdated, inaccurate, perhaps embarrassing information about them removed from the web?
Addressing that question,

the European Court of Justice (ECJ) ruled on Thursday that citizens do have a certain "right to be forgotten" online

the European Court of Justice (ECJ) ruled on Thursday that citizens do have a certain "right to be forgotten" online. The court ordered Google to remove links to archived newspaper pages containing old information about the repossessed home of a Spanish man who sued Google and the newspaper in 2010. But what does the "right to be forgotten" actually mean? What does this decision actually say, and what are its implications? We have the answers, below.

See also: EU Wants a 'Right to Be Forgotten,' But the Internet Never Forgets

The one-sentence summary

Google will have to remove some search results upon request because the European Union's highest court believes that old information about a person can be not only irrelevant but misleading.

What did the court say?

The ECJ ruled that a search engine like Google has a responsibility to delete links concerning personal information upon request as long as that information is not relevant or in the public interest.
The search engine must remove the links even if the original source of the information, in this case the newspaper, doesn't have the obligation to do the same.
Why this distinction between newspapers and search engines? Because search engines make it easy to find information and are responsible when that information is outdated or inaccurate, the court said.
"Without the search engine," reads the summary of the court's full decision, "the information could not have been interconnected or could have been only with great difficulty."
The case was based on a complaint by Mario Costeja González, who argued that an auction note on his repossessed home damaged his reputation. The Spanish newspaper La Vanguardia published that information in 1998.

So what is this "right to be forgotten"?

The right to be forgotten is a legal concept in Europe that maintains that a person has a right to leave his or her past behind. The concept originated from the French "droit à l’oubli" (right of oblivion), which allows a convicted criminal to avoid having the details of a conviction and incarceration published after serving prison time.
Applied to the Internet, this concept would give individuals the right to ask Internet companies to erase their personal data when it is outdated, inaccurate or simply not relevant anymore, if there is no public interest in preserving the data.
But experts warn

this is not an unlimited right to get a free pass from an embarrassing or even criminal past

this is not an unlimited right to get a free pass from an embarrassing or even criminal past."That does not mean that everybody has the right to be forgotten whenever they'd like to have their data forgotten," Douwe Korff, a law professor at the London Metropolitan University who specializes in data privacy, tells Mashable. "The right to be forgotten, it's really a balance. It doesn't say you have the right to have your transgressions forgotten. It says if there is no public interests in those transgressions being exposed, then they shouldn't be exposed."
The right to be forgotten is not regulated in detail in European law, although the EU is working on a comprehensive new law that would regulate it explicitly. Today's decision, however, is based on a 1995 directive that says the EU's members have an obligation to make sure personal data is accurate and up to date. If there's "inaccurate or incomplete" data, countries have to provide citizens with a way to have that data "erased or rectified."
The directive doesn't specifically refer to Internet data, but applies to all kinds of data. The ECJ ruled today that the obligation to erase or rectify inaccurate or outdated information amounts to a right to be forgotten.

Why are critics wary about this ruling?

That might all sound reasonable, as we all have parts of our past we'd like the Internet to forget, but there's a problem here: Who decides what information can be deleted and what information should be preserved? Where's the limit?
The ECJ ruled that a person who wants some of his or her personal data erased can demand so from a search engine, which in turn will have to decide if the request is reasonable, balancing the person's privacy rights with freedom of expression and the public interest. And that gets tricky.
"That's not a very easy judgment to make," says Jens-Henrik Jeppesen, the director of European Affairs for the Center for Democracy & Technology, a digital rights organization. "There is all the risk in the world that this will be used by all kinds of people to demand that various information that they find inconvenient should be taken down."
The risk, Jeppesen says, is that such requests might lead Internet companies to be overly conservative and accept most of the demands to avoid litigation.
In other words, the risk is pre-emptive self-censorship. And the result of that might be a situation in which the same search term gives completely different results in Europe and the United States.
"It almost sounds like China," Jeppesen says. "You get one sets of results if you search from China and another if you search from outside."
But not everyone is alarmed. Viktor Mayer-Schönberger, a professor of Internet governance and regulation at the Oxford Internet Institute, wrote in an email that concerns about censorship are "BS," since this is about information already out there and published many years prior.
Furthermore, he adds, "practical implications will be limited because it still requires individuals to make claims and vigorously pursue them not shying away from spending time and money. Only few will do so."
But the ruling opens up many other questions.

Where will the ruling apply?

Across all 28 member states of the European Union.

Why doesn't the United States have a "right to be forgotten," too?

Europe and the United States may share many Western values, but they have different legal regimes and cultural perceptions. In Europe, privacy is a right that is explicitly enshrined in Article 8 of the European Convention on Human Rights, whereas in the U.S., privacy rights are more open to legal interpretation.
Moreover in the United States, the First Amendment, which protects freedom of speech and freedom of the press, is almost untouchable. It would theoretically be more difficult to reconcile extensive free speech rights with an obligation to delete data after the fact.
That being said, there are some U.S. laws that have tried to give citizens more power to request the removal of online content.
California has mandated that minors have a chance to delete their own social media posts. Numerous states are considering laws against "revenge porn," in which people release private images of former partners. Both cases acknowledge that some situations necessitate the deletion of content from the Internet whether put there voluntarily or otherwise.
"We have a handful of laws that already do this," said Meg Leta Ambrose, an assistant professor at Georgetown University's department of communication, culture and technology. "I think that if you factor in a long amount of time that it's possible that the First Amendment could make room for a right to be forgotten."

Is this ruling a big deal?

Yes, it is. First of all, the ECJ, as Jeppesen puts it, is basically the "Supreme Court" of the European Union, so its decisions are "the law of the land" in Europe.
Courts across the EU will have to use this ruling to interpret European law. The ruling goes beyond just a single case, according to Korff.
"The Europeans, including the court, are squaring up for a massive international legal statement saying we will not allow the privacy and data protection rights of European citizens to be undermined by the Internet," Korff says.
That said, experts also cautioned against interpreting the effects of the ruling too quickly. "It will take some time for everybody to really digest the implication," Korff says.
Mayer-Schönberger notes that this decision was about a very particular case, and "the court made clear in other cases the balance may need to be struck differently."

What does this mean for Google?

It's going to cost them money, possibly a lot of it.
"It's a really expensive decision," said Meg Leta Ambrose, an assistant professor at Georgetown University's department of communication, culture and technology.

The decision might require Google to hire a slew of people to handle requests to delete personal data

The decision might require Google to hire a slew of people to handle requests to delete personal data. "I imagine you'll see a whole lot more 'help wanted' ads on Google in the next couple weeks," she said.
The case also puts Google and other search engines in a sudden position of power. Google will now be tasked with becoming the front-line arbiter of what should and should not be deleted.
"Now, Google is in charge of deciding what the right to be forgotten means for all of these member states," Ambrose said.
Individual EU countries can determine their own regulations for Google to follow. This case in Spain may not have played out the same way in Italy.
"For every request that comes in, [Google] will determine the public interest in that content, and it will have to navigate 28 member states," Ambrose said.
In addition, newspapers have certain protections because they are considered part of the public interest, but Google does not have the protections that most publishers have, Ambrose said.
Obviously, Google is unhappy. In a statement, the company said that "this is a disappointing ruling for search engines and online publishers in general." But it declined to comment any further.