Last Month, Korea Communication Commission announced its plan to issue a guideline on the right to be forgotten. Right to be forgotten is a right created in a response to the perception that the high speed and spatio-temporal extensiveness of information diffusion in the Internet age allows others to learn about people’s past wrongs too easily, and therefore the right empowers people to restrict the information diffusion by delisting “obsolete” or “no longer relevant” information about them from the results of the search using their names, according to the European Court of Justice’ decision Google Spain. Open Net Korea advises as follows:
Relevance of data cannot be decided according to the subjective conditions of the data subject. A ferry operator will argue that the data about his past overloading violations are no longer relevant to his feckless behavior now but that data will be very relevant to the post-Sewol parents anxious to send their kids on vehicles even one notch safer. Restricting the flow of the data just because of the passage of time and the changed condition of the data subject without taking into account how much that data is sought for by whom cannot be a proportionate way of protecting people’s right to know. Kopinos’ need to find their fathers can easily overwhelm the “fathers” desire to be forgotten by them and protect their current families.
Excluding matters of “public interest” or “public figures” from the right’s coverage does not resolve this problem. They are concepts reflecting the majority or average thinking of a collectivity. A minority who falls out of that majority/average spectrum should be allowed to speak his or her minds or access otherwise lawful information, and that is the pluralistic ideal that freedom of speech protects. The fact that a Spanish lawyer had his house auctioned off to pay his social security debt 12 years ago may be uninteresting to most of us but may be very important to an obscure researcher studying on reform of judicial professions in Spain.
If there is a lesson from the right to be forgotten debate, it is that we should not unreasonably discriminate people based on their past wrongs. However, restricting the information about those wrongs will only cover up the underlying conflicts and delay resolution of the real problems. Affording to be generous only by legally forcing ourselves to be blind about our own wrongs cannot nurture a culture of true tolerance.
The problem is not resolved just by limiting ourselves to making the data not searchable as opposed to taking them down. The rich can hire people to find by brute force the desired information, which is no longer available for search and therefore the poor cannot access. The reality that “what is not searchable online may as well be non-existent” will further aggravate the informational inequity suffered by the poor. As a result, the significance of the Internet – equipping powerless individuals with the informational capacity equal to big corporations’ and thereby contributing to fair competition and democracy, will be handicapped, and the informational inequity will be worsened to that of a pre-Internet age. Also, if the Internet no longer works as an equal platform for accessing information, people will increasingly rely on off-line reputations. This means that the rich can outspend the poor in publicity and advertising expenses and bring back the reputational inequity of the pre-Internet age, hindering fair competition in politics, economy, and society.
Finally, the Constitution requires any restriction of basic rights to be administered through statute made by people’s representatives. The “guideline” is supposed to be only advisory. However, other non-mandatory measures such as KCSC’s “correction request” under Article 21 Item 4 and “communication data request” under Article 83 Paragraph 3, combined with the paternalistic government-business relationship of the country, always resulted in the mandatory-like compliance. A KCC person said that a “guideline” is being proposed instead of a statute to build “social consensus” but the expected results of the guideline are clear. KCC, an administrative body, has no power to legislate a restriction on a basic right, freedom of speech.