KS Park opened the session with an operational definition of the right to be forgotten: a norm allowing people to suppress otherwise lawful information about them either by delisting or takedown or through civil/criminal liability on the speakers. Defined that way, KS also shared the Korean experience of how the #MeToo movement was hampered by truth defamation law which falls within the definition of right to be forgotten law. He noted that to truth defamation law is attached an exemption for speech for “public interest” but argued that obligating speakers to “prove public interest” speaking truthfully about non-confidential matters acts as a censorship and contradicts the pluralistic ideal of free speech that the good is defined pluralistically, i.e., by different people.
Maria Paz Canalez shared a concern prevalent in South America that the European Court of Justice has done a poor job in balancing data protection and freedom of speech allowing de-indexing orders to go directly to search engines. There are other technical solutions such as using robots.txt which can be implemented by the data sources. Also, there is no clear standard of what is “forgettable” (i.e., no longer relevant), and constitutional actions are better equipped to strike the balance. Allowing only the narrow exception of “public interest” will harm the oppressed people who cannot share data when they are not able to prove that.
Lorena Jaume-Palasi is also concerned that RTBF is expanding in its scope. ECJ’s search results delisting order logically applies not just to Google but newspapers with search functions on their websites. Database of public officials’ corruption is being charged with violation of data protection laws. Also, she demanded that the regulators be realistic about the desired jurisdictional scope. She also reminded that forgiving, which is the ultimate goal of right to be forgotten, requires remembering. Right to be forgotten creates serious imbalances between ontology and epistemology. Restraining knowledge is not the way to do it. Societal mechanism for ethical discourse must be protected.
David Kaye believes the right to be forgotten makes research into history very difficult. He points out that there is much research that produces aggregate information as a result, which does not involve any conflict with data protection law, and yet such research is hampered if all these information are hidden from search. For some reason, there is no global response to Google v. Costeja. Most responses have been regional. The problem is that there is absence of oversight on the company decisions.
Bishakha Datta discussed the implication of RTBF on the availability of rape videos while acknowledging that much video can be taken down by portals regardless of RTBF. She has asked the audience to think about the benefits and costs of such slogan as “I own my body, I own my data” but pointed out a distinction between “forgetting vis-a-vis machine vs. forgetting vis-a-vis people”. She did say that she is gradually believing more strongly that RTBF threatens public ethical discourse.
The audience responded with such comments as:
- Disappearing information from search results have cumulative effects that we have no way of fighting against because we do not know what is disappearing.
- Data cannot be owned. Data is mode of communication between sentient beings. It is created to be shared.
- Right to be remembered is as important as right to be forgotten.
- Most content takedown requests come from right wing politicians.
KS summed up the session with a response to a pro-RTBF slogan that “You don’t have to know everything (right to know should not be protected ad infinitum)”. His response is that sharing information about another person with others online is different from speaking in a giant stadium populated by everyone. Having some information online will not mean that everyone will come to know that information. Only the person actively seeking that information (first by entering the person’s name and later by actively clicking the hyperlinks) will know that information. Online space is less like a giant stadium with open space among all the audience but more like an aggregate of many many rooms where people have to open doors to receive the information. Now, search engines allow people to look at only the information they would like to see. This extremely efficient many-to-many communication is what makes the Internet a great tool to scale up progressive movements. With search results manipulated, the companies and governments putting more volume of information online will crowd out small players. He reports that Indonesia recently passed a right to be forgotten law and the civil society is concerned that it will be used by elites to cover up their past.
Session description: The session aims to discuss the online “right to be forgotten” as an example for the need to think about the relationship between access to information and personal data protection, besides outlining and problematizing the idea of a right to obliteration, and the role of the Internet over such issues. This central element will subsidize a discussion that seeks to understand the balance, difculties and themes which are important within the perspective of personal data, memory, history and the role of the Internet in these relations. Thus, in addition to the themes mentioned above, we intend to understand how the right to freedom of expression, access to information and privacy can be protected while preventing forgetfulness and abuse or erasure of data. You will hear from activists who have struggled with these issues in their regional or thematic work (e.g., Latin America, China, India, Western Europe and gender issues) taking on the privacy-bound challenges of digitization while keeping head down to preserve the developmental role of the Internet as the sphere of public discourse . You will also hear from a data protection regulator and a company, respectively obligated to enforce their duties to make the Internet “forget” certain contents.
[Related Open Net Actions]
1. Two Main Obstacles to “Me Too” Movement in Korea: Truth Defamation and Temporary Takedown Requests (2018.2.5.)
2. 330 Legal Professionals including Professors and Lawyers Announced <Declaration for the Abolition of Truth Defamation> (2018.4.6.)
3. Article 19 Calls on the Republic of Korea to Prioritise the
Repeal of Criminal Defamation Provisions, Including Those That
Criminalise the Dissemination of True Statements (2018.11.1)
4. Open Net Submitted an Opinion Opposing the Sentencing Commission’s Sentencing Guidelines on Defamation (2019.2.11.)
5. Open Net Submitted Opinions on Amendments to the Criminal Act and the Information and Communications Network Act Aimed at Reducing the Scope of Criminal Punishment of Truth Defamation (2019.3.12.)
6. The Court of Justice of the EU Rules That the Operator of a Search Engine Is Not Required to Carry out a De-Referencing On All Versions of Its Search Engine (2019.10.1.)