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Published by Victory Briefs, PO Box 803338 #40503, Chicago, IL 60680-3338. Edited by Jake
Nebel and Chris Theis. Written by Jake Nebel, Chris Theis, Marshall Thompson, Jacob Nails,
and Steven Knell. Evidence cut by Rebecca Kuang, Nick Smith, and authors. For customer
support, please email help@victorybriefs.com or call 330.333.2283.
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Contents
1 Interpretations (Chris Theis and Jake Nebel)
1.1 Road Map . . . . . . . . . . . . . . . . . . . . .
1.2 Contemporary Controversy . . . . . . . . . . .
1.3 Historical Background . . . . . . . . . . . . . .
1.4 Defining the Right to be forgotten . . . . . .
1.5 Ought to be . . . . . . . . . . . . . . . . . . . .
1.6 Civil right . . . . . . . . . . . . . . . . . . . . .
1.7 Full Text of Abbreviated Cards . . . . . . . . .
2 A Philosophical Perspective (Marshall
2.1 Introduction . . . . . . . . . . . . . . .
2.2 Resolutional Interpretation . . . . . .
2.3 Affirmative Arguments . . . . . . . . .
2.4 Negative Arguments . . . . . . . . . .
2.5 Conclusion . . . . . . . . . . . . . . .
2.6 Full Text of Abbreviated Cards . . . .
3 A Pragmatic Perspective (Jacob
3.1 Censorship . . . . . . . . . . .
3.2 Economics . . . . . . . . . . . .
3.3 Revenge Pornography . . . . .
3.4 Conclusion . . . . . . . . . . .
3.5 Cards . . . . . . . . . . . . . .
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5 Aff
5.1
5.2
5.3
5.4
Evidence
Definition- Right to be Forgotten .
Definitions- Forget vs Forgotten
Bankruptcy Law . . . . . . . . . . .
Contractual Right . . . . . . . . . .
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Transaction: 8804 - November 5, 2014 - This product is licensed to: Denise Johnson - johnsod6@fargo.k12.nd.us by Victory Briefs.
Any distribution or modification of this file not explicitly allowed by the terms of purchase (including removing or obscuring this text) is a violation of copyright.
Please report illicit distribution of this file to help@victorybriefs.com
Contents
5.5
5.6
5.7
5.8
5.9
5.10
5.11
5.12
5.13
5.14
5.15
5.16
5.17
5.18
5.19
5.20
5.21
5.22
5.23
5.24
5.25
5.26
5.27
6 Neg Evidence
6.1 Abuse . . . . . . . . . .
6.2 Administrative Burdens
6.3 Anonymised Data . . . .
6.4 Censorship . . . . . . .
6.5 Chilling Effect . . . . .
6.6 Expiration Date CP . .
6.7 Enforcement . . . . . . .
6.8 Free Speech . . . . . . .
6.9 Freedom of Information
6.10 Implementation . . . . .
6.11 Jurisdiction . . . . . . .
6.12 Language Kritik . . . .
6.13 Practical Difficulties . .
6.14 Privacy . . . . . . . . .
6.15 Rights Violations . . . .
6.16 Risk Matrix . . . . . . .
6.17 Solvency Deficits . . . .
6.18 Vagueness . . . . . . . .
6.19 AT Europe . . . . . . .
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Contents
6.20
6.21
6.22
6.23
6.24
6.25
6.26
6.27
6.28
AT Individual Consent . . . .
AT Self-Definition . . . . . .
AT Social Media Companies .
Toobin Neg . . . . . . . . . .
Solvency Takeouts and Turns
Bad Standards of Application
AT Software Advice Study . .
Rosen Neg . . . . . . . . . . .
Limits and Limitations . . . .
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http://hemeroteca.lavanguardia.com/preview/1998/01/19/pagina-23/33842001/pdf.html
Iglezakis, Ioannis. The Right to Be Forgotten in the Google Spain Case (Case C-131/12):
A Clear Victory for Data Protection or an Obstacle for the Internet?
July 26, 2014.
http://ssrn.com/abstract=2472323
3
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf
2
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MITCHELL-REKRUT, COOPER. SEARCH ENGINE LIABILITY UNDER THE LIBE DATA REGULATION PROPOSAL: INTERPRETING THIRD PARTY RESPONSIBILITIES AS INFORMED
BY GOOGLE SPAIN. GEORGETOWN JOURNAL OF INTERNATIONAL LAW. Vol. 45. 2014.
http://www2.law.georgetown.edu/academics/law-journals/gjil/recent/upload/zsx00314000861.PDF
5
Reding, Vivian. Your data, your rights: Safeguarding your privacy in a connected world Speech to the
European Commission, March 16. 2011 (Brussels). http://europa.eu/rapid/press-release_SPEECH11-183_en.htm
6
Bernal, P.A., A Right to Delete?, European Journal of Law and Technology, Vol. 2, No.2, 2011.
http://ejlt.org/article/view/75/144
7
http://www.theguardian.com/commentisfree/libertycentral/2011/mar/18/forgotten-online-europeanunion-law-internet
8
http://www.westminsterforumprojects.co.uk/forums/event.php?eid=235
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Bernal, P.A., A Right to Delete?, European Journal of Law and Technology, Vol. 2, No.2, 2011.
http://ejlt.org/article/view/75/144
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http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf
http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf
12
Rosen, Jeffery. The Right to Be Forgotten. 64 Stan. L. Rev. Online 88. February 13, 2012.
http://www.stanfordlawreview.org/sites/default/files/online/topics/64-SLRO-88.pdf
13
http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&docid=15206
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http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf
http://www.cnet.com/news/google-hit-by-more-than-144000-right-to-be-forgotten-requests/
16
http://www.euractiv.com/specialreport-data-protection/us-lobbying-waters-eu-data-prote-news510991
17
Ambrose, Meg Leta, Speaking of Forgetting: Analysis of Possible Non-EU Responses to the
Right to Be Forgotten and Speech Exception. TPRC Conferences, TPRC 41: The 41st
Research Conference on Communication, Information and Internet Policy. February 4, 2014.
http://ssrn.com/abstract=2238602
18
http://www.theregister.co.uk/2014/10/10/eu_ministers_google_right_to_be_forgotten_watered_down/
15
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http://www.softwareadvice.com/security/industryview/right-to-be-forgotten-2014/
http://www.maw-law.com/privacy/two-new-california-laws-right-forgotten-minors-protection-cyberrevenge/
21
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568
22
http://www.paulhastings.com/publications-items/blog/caveat-vendor/caveatvendor/2013/09/30/California-Gives-its-Teens-the-Right-to-Be-Forgotten
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http://www.markey.senate.gov/documents/2013-11-14_Markey_DNTK.pdf
http://thehill.com/policy/technology/206169-should-us-have-right-to-be-forgotten
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Ambrose, Meg Leta, Speaking of Forgetting: Analysis of Possible Non-EU Responses to the
Right to Be Forgotten and Speech Exception. TPRC Conferences, TPRC 41: The 41st
Research Conference on Communication, Information and Internet Policy. February 4, 2014.
http://ssrn.com/abstract=2238602
26
http://europa.eu/rapid/press-release_SPEECH-11-183_en.htm
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Rosen, Jeffery. The Right to Be Forgotten. 64 Stan. L. Rev. Online 88. February 13, 2012.
http://www.stanfordlawreview.org/sites/default/files/online/topics/64-SLRO-88.pdf
28
Whitman, James. The Two Western Cultures of Privacy: Dignity Versus Liberty. Yale Law Journal.
Vol. 113, No. 6. 2004. http://www.yalelawjournal.org/article/the-two-western-cultures-of-privacydignity-versus-liberty
29
http://www.echr.coe.int/Documents/Convention_ENG.pdf
30
http://www.theatlantic.com/technology/print/2012/01/why-journalists-shouldnt-fear-europes-rightto-be-forgotten/251955/
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Lagone, Laura. The Right to Be Forgotten: A Comparative Analysis December 7, 2012. Available at
SSRN: http://ssrn.com/abstract=2229361
32
Gordley, James. When is the Use of Foreign Law Possible? A Hard Case: The Protec- tion of Privacy
in Europe and the United States. Louisiana Law Review. Vol. 67, No. 4. 2007.
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Whitman, James. The Two Western Cultures of Privacy: Dignity Versus Liberty. Yale Law Journal.
Vol. 113, No. 6. 2004. http://www.yalelawjournal.org/article/the-two-western-cultures-of-privacydignity-versus-liberty
34
Walker, Robert Kirk. The Right to Be Forgotten. HASTINGS LAW JOURNAL. Vol. 64. December
2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017967
35
Lagone, Laura. The Right to Be Forgotten: A Comparative Analysis December 7, 2012. Available at
SSRN: http://ssrn.com/abstract=2229361
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Walker, Robert Kirk. The Right to Be Forgotten. HASTINGS LAW JOURNAL. Vol. 64. December
2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017967
37
Gordley, James. When is the Use of Foreign Law Possible? A Hard Case: The Protec- tion
of Privacy in Europe and the United States. Louisiana Law Review. Vol. 67, No. 4. 2007.
http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=6205&context=lalrev
38
Bennett, Steven C. TheRight to Be Forgotten:
Reconciling EU and US Perspectives.
BERKELEY JOURNAL OF INTERNATIONAL LAW. Vol.
30, Issue 1.
2012.
http://scholarship.law.berkeley.edu/bjil/vol30/iss1/4/
39
Whitman, James. The Two Western Cultures of Privacy: Dignity Versus Liberty. Yale Law Journal.
Vol. 113, No. 6. 2004. http://www.yalelawjournal.org/article/the-two-western-cultures-of-privacydignity-versus-liberty
40
Bennett, Steven C. TheRight to Be Forgotten:
Reconciling EU and US Perspectives.
BERKELEY JOURNAL OF INTERNATIONAL LAW. Vol.
30, Issue 1.
2012.
http://scholarship.law.berkeley.edu/bjil/vol30/iss1/4/
15
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Tam, Aurelia and George, Damian. Oblivion, Erasure and Forgetting in the Digital Age Journal of Intellectual Property, Information Technology and E-Commerce Law. Vol. 5. 2014.
http://www.jipitec.eu/issues/jipitec-5-2-2014/3997/#ftn.N10109
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Ambrose, Meg Leta, Speaking of Forgetting: Analysis of Possible Non-EU Responses to the
Right to Be Forgotten and Speech Exception. TPRC Conferences, TPRC 41: The 41st
Research Conference on Communication, Information and Internet Policy. February 4, 2014.
http://ssrn.com/abstract=2238602
43
European Commission Communication to the European Parliament, the Council, the Economic and
Social Committee and the Committee of the Regions, COM. 609. 2010 http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:52010DC0609
44
Reding, Vivian. Building Trust in Europes Online Single Market Speech at the American Chamber
of Commerce to the EU Brussels, 22 June 2010. http://europa.eu/rapid/press-release_SPEECH-10327_en.htm
45
Ambrose, Meg Leta, Speaking of Forgetting: Analysis of Possible Non-EU Responses to the
Right to Be Forgotten and Speech Exception. TPRC Conferences, TPRC 41: The 41st
Research Conference on Communication, Information and Internet Policy. February 4, 2014.
http://ssrn.com/abstract=2238602
17
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Iglezakis, Ioannis. The Right to Be Forgotten in the Google Spain Case (Case C-131/12):
A Clear Victory for Data Protection or an Obstacle for the Internet?
July 26, 2014.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2472323
47
Tam, Aurelia and George, Damian. Oblivion, Erasure and Forgetting in the Digital Age Journal of Intellectual Property, Information Technology and E-Commerce Law. Vol. 5. 2014.
http://www.jipitec.eu/issues/jipitec-5-2-2014/3997/#ftn.N10109
18
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Xanthoulis, Napoleon. Conceptualising a Right to Oblivion in the Digital World research essay at
University College London, May 2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2064503
49
Tam, Aurelia and George, Damian. Oblivion, Erasure and Forgetting in the Digital Age Journal of Intellectual Property, Information Technology and E-Commerce Law. Vol. 5. 2014.
http://www.jipitec.eu/issues/jipitec-5-2-2014/3997/#ftn.N10109
50
Tam, Aurelia and George, Damian. Oblivion, Erasure and Forgetting in the Digital Age Journal of Intellectual Property, Information Technology and E-Commerce Law. Vol. 5. 2014.
http://www.jipitec.eu/issues/jipitec-5-2-2014/3997/#ftn.N10109
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http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf
http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf
53
http://www.dataguidance.com/dataguidance_privacy_this_week.asp?id=2119
54
Ambrose, Meg Leta, Speaking of Forgetting: Analysis of Possible Non-EU Responses to the Right to
Be Forgotten and Speech Exception. TPRC Conferences, TPRC 41: The 41st Research Conference
on Communication, Information and Internet Policy.
55
AMBROSE, MEG LETA and AUSLOOS, JEF. THE RIGHT TO BE FORGOTTEN ACROSS THE POND JOURNAL OF INFORMATION POLICY 3, 2013.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032325
52
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AMBROSE, MEG LETA and AUSLOOS, JEF. THE RIGHT TO BE FORGOTTEN ACROSS THE POND JOURNAL OF INFORMATION POLICY 3, 2013.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032325
57
AMBROSE, MEG LETA and AUSLOOS, JEF. THE RIGHT TO BE FORGOTTEN ACROSS THE POND JOURNAL OF INFORMATION POLICY 3, 2013.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032325
58
Koops, Bert-Jaap. Forgetting Footprints, Shunning Shadows: A Critical Analysis of the Right to Be
Forgotten in Big Data Practice SCRIPTed, Vol. 8, No. 3, 2011; Tilburg Law School Research Paper
No. 08/2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1986719
59
Xanthoulis, Napoleon. Conceptualising a Right to Oblivion in the Digital World research essay at
University College London, May 2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2064503
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Murata, K. and Orito, Y.The right to forget/be forgotten CEPE 2011: Crossing Boundaries. 2011.
http://www.utwente.nl/gw/wijsb/organization/coeckelbergh/publications/48.pdf#page=193
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AMBROSE, MEG LETA and AUSLOOS, JEF. THE RIGHT TO BE FORGOTTEN ACROSS THE POND JOURNAL OF INFORMATION POLICY 3, 2013.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032325
62
Xanthoulis, Napoleon. Conceptualising a Right to Oblivion in the Digital World research essay at
University College London, May 2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2064503
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1.5 Ought to be
Many LD resolutions state that some agent or class of agents (e.g., the United States
or just governments) ought to do something. Although this resolution uses the word
ought, it diverges from the usual pattern. It does not say that any particular agent
or class of agents ought to make the right to be forgotten a civil right. Instead, it
says that the right to be forgotten ought to be a civil right. How does this affect your
approach to the resolution?
Many debaters claim that ought, by definition, expresses a moral obligation. That is
not always true. Consider the following sentences:64
(1) The meeting ought to start at noon.
(2) There ought to be world peace.
(3) Liz ought to win the tournament.
Sentence (1) does not imply that the meeting, or anyone in charge of the meeting, has a
moral obligation to start at noon. It expresses the idea that the meeting is likely to start
at noon, or that it would be surprising if the meeting did not start at noon. (2) does not
imply that anyone has an obligation to bring about world peace. It seems, instead, to
express the desirability or goodness of world peace. (3) does not imply that Liz has a
moral obligation to win the tournament. Instead, it expresses the idea that Liz is most
likely or most deserving competitor to win the tournament.
63
Ausloos, Jef. The Right to Be Forgotten - Worth Remembering? Computer Law & Security Review.
Volume 28. Issue 2. April 2012. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1970392
64
Schroeder, M. Ought, Agents, and Actions. Philosophical Review 120, no. 1 (January 1, 2011): 141.
doi:10.1215/00318108-2010-017.
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2732.
27
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Pagallo, U. (2013). Online Security and the Protection of Civil Rights: A Legal Overview. Philosophy
& Technology, 26(4), 381395. doi:10.1007/s13347-013-0119-6
68
Grey, Thomas C (Professor at Stanford Law School). (1991). Civil Rights Vs. Civil Liberties:
The Case of Discriminatory Verbal Harassment. Social Philosophy and Policy, 8(02), 81107.
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doi:10.1017/S026505250000114X
Biletzki, Anat (Professor of Philosophy, Tel Aviv University). (2013). Online Security: Whats in a
Name? Philosophy & Technology, 26(4), 397410. doi:10.1007/s13347-013-0129-4
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2.1 Introduction
This topic analysis will examine the November/December 2014 Lincoln-Douglas debate
topic from the perspective of philosophical casing. I will start by noting the way the
terms are used in the literature, focusing mainly on the concept of ought to be and civil
right as those are the more philosophically loaded concepts in the resolution. Having
provided a general outline of the topic area I will then cover various possible case positions
on both the affirmative and negative sides of the resolution.
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Warman, Matt.
EU Fights fierce Lobbying to Devise Data Privacy Law.
The
Telegraph.
Telegraph Media Group, 30 June 2009.
Web.
07 Oct.
2014.
http://www.telegraph.co.uk/technology/internet/9069933/EU-fights-fierce-lobbying-to-devisedata-privacy-law.html.
2
Ambrose, Meg L., and Jef Ausloos. The Right To Be Forgotten Across The Pond. Journal of
Information Policy 3 (2013): 1-23. Web.
35
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Weber, Rolf H [Chair Professor for International Business Law at the University of Zurich]. The
Right to Be Forgotten: More Than a Pandoras Box? JIPITEC 2 (2011): 120-30. Web.
http://www.jipitec.eu/issues/jipitec-2-2-2011/3084/jipitec%202%20-%20a%20-%20weber.pdf.
36
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Fagan, Andrew [One of the foremost academic experts on questions of rights]. Human Rights.
Internet Encyclopedia of Philosophy. Ed. Michael Boylan. N.p., n.d. Web. 4 Oct. 2014. http:
//www.iep.utm.edu/hum-rts/#SH3a.
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Altman, Andrew, Civil Rights, The Stanford Encyclopedia of Philosophy (Summer 2013 Edition),
Edward N. Zalta (ed.), http://plato.stanford.edu/archives/sum2013/entries/civil-rights/.
6
Waldron, Jeremy 1993. Liberal Rights, Cambridge: Cambridge University Press
7
Interestingly, and as a counterpoint to the above argument, there already seems to be some move in
the direction of defining the RTBF within in its own set of fourth-generation rights. C.f. The Right
to Be Forgotten: More Than a Pandoras Box? page 124.
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2.2.3 Ought to Be
What does it mean for something to be a legal or civil right? It seems at the very least,
it requires some institutional recognition of the right (perhaps constitutionally) within
codified legal norms. However, the affirmative may want to claim more than simply
that the right is on the books. A law or right can exist and yet not be adequately
or consistently enforced. The history of jurisprudence is dominated by inconsistent or
partial rights enfranchisement, and it is not uncommon for some rights to be de facto
reserved for the politically or economically privileged as only they have the means to
sustain or support their rights in court.
There are also laws that exist for symbolic reasons only. Many U.S. states, for instance,
have laws that are never enforced and in some cases have no mechanism for possible
enforcement. The idea of such rights, is that while the actual establishment of the norm
is impossible or undesirable, the ideal itself is one that it is worth supporting symbolically.
Could the affirmative on this resolution endorse a similar policy, where there is a legal
rule that stipulates a RTBF but which in practice is essentially unenforced?
It should also be noted that the resolution is devoid of explicit context. It does not
provide a particular country or even legal tradition (the resolution does have significant
implied context, like the assumption we are not in ancient Athens, given the existence
of the Internet). This is important, because what it means for something to be a civil
right will change based on the legal tradition in which it is situated. This vagueness
probably implies that the affirmative should have some reasonable ability to define or
clarify the scope of the resolutional question.
39
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Tunick, Mark[Ph.D. of political science from Berkeley and current Professor of Political Science at
Harriet Wilkes Honors College]. Privacy and Punishment. Ed. Margaret Dancy, Victoria Costa,
and Joshua Gert. Social Theory and Practice 39.4 (2013): 643-68. Ebscohost. Web.
40
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This could potentially make for an independent affirmative case, focusing on the importance of
preserving a space for childhood development. There is copious research about the importance of
adolescents feeling willing to make mistakes as a necessary component for full moral development.
10
Dr Katerina Hadjimatheou. The Right to be Forgotten. Politics Reconsidered. June 2 2014. University
of Warwick politics and international studies blog. http://politicsreconsidered.net/2014/06/02/rightto-be-forgotten/.
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Ambrose, Meg L., and Jef Ausloos. The Right to Be Forgotten Across The Pond. Journal of
Information Policy 3 (2013): 1-23. Web.
12
Of course, there are also rule utilitarian defenses of the harm principle.
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Jeffrey Rosen. The Right to be Forgotten 64 Stanford Law ReviewOnline 88. February 13 2012.
http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten. See Also Emily
Adams Shoor. Narrowing the Right to be Forgotten: Why the European Union Needs to Amend
the Proposed Data Protection Regulation Brooklyn Journal of International Law Vol 39:1 487-519.
2013-4
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2.5 Conclusion
All in all, the literature on this topic is not as mature or developed as the literature
on most topics. Thus, familiarizing yourself with surrounding issues, such as better
understanding the European legal tradition and the social role of civil rights, will help
provide the flexibility for casing and rebuttals that will give a big leg up on the topic.
There are certainly other arguments out there in the literature not touched on by this
analysis, for instance concerning the complications of a trans-national internet, or the
constitutionality of censorship, but hopefully the discussion above will provide a solid
starting point for those inclined towards more philosophical casing.
14
Mary Anne Glendon. Rights Talk: The Impoverishment of Political Discourse. 1993. Free Press. Print.
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49
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3.1 Censorship
Perhaps the single largest criticism of the RTBF is that it opens the door to censorship.
An individuals right to be forgotten imposes on othersusually news media or search
enginesa correlative duty to forget. This duty often takes the form of a court order
against private companies to remove factual information from their databases, raising
significant freedom of press concerns. Professor Jeffrey Rosen offers what has come to be
perhaps the most widely quoted summary of the censorship objection to RTBF:2
I can demand takedown and the burden, once again, is on the third party to
prove that it falls within the exception for journalistic, artistic, or literary
exception. This could transform Google, for example, into a censor-in-chief
1
2
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Ibid.
David Kirkpatrick (technology journalist for Forbes and Vanity Fair, member of the Council on
Foreign Relations, founder and CEO of Techonomy, author of the bestselling book The Facebook
Effect). The Right to Be Forgotten? Europes Orwellian Internet Time Warp. Forbes. 23
May 2014. http://www.forbes.com/sites/techonomy/2014/05/23/the-right-to-be-forgotten-europesorwellian-internet-time-warp/
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Eduardo Bertoni (Professor at NYU School of Law; Director of the Center for Studies on Freedom of Expression at University of Palermo School of Law in Argentina). The Right to
Be Forgotten: An Insult to Latin American History. Huffington Post. 24 September 2014.
http://www.huffingtonpost.com/eduardo-bertoni/the-right-to-be-forgotten_b_5870664.html
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Andres Guadamuz (Senior Lecturer in Intellectual Property Law at the University of Sussex). Could
naked celebrity pictures bring about a global right to be forgotten? TechnoLlama, cybertechnology
law blog. 3 October 2014. http://www.technollama.co.uk/could-naked-celebrity-pictures-bring-aboutglobal-right-to-be-forgotten
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3.2 Economics
A second recurring debate surrounding the right to be forgotten is how it will affect
the economy. Unclear regulatory schemes can deter business investments, and disparate
standards for privacy across national borders can make international trade more difficult.
Kirkpatrick, who also criticizes the right to be forgotten for its dangerous precedent
of censorship, expresses equal dismay at the effect of RTBF on the economy. One of
the primary goods that the internet provides, on his view, is the democratization of
information, and RTBF could undermine that service, with ramifications forhe goes so
far as to sayglobal economic growth. He argues,7
When the European Court of Justicethe rough equivalent of the U.S.
Supreme Courtruled that individuals have the right to be forgotten, it took
a dangerous step backward. Among many potential negative consequences, it
could contribute to slowing global economic growth. The court endorsed a
profoundly ahistorical, anti-technological argument about the supposed rights
of individuals. . . . The court in this instance put tremendous importance on
the individuals right to privacy, but in so doing disregarded what I consider
another extremely important rightthe right to information. The Internet
has leveled the playing field for individuals and institutions. One of the
great things about Google is that someone sitting before it and inputting a
7
David Kirkpatrick (technology journalist for Forbes and Vanity Fair, member of the Council on
Foreign Relations, founder and CEO of Techonomy, author of the bestselling book The Facebook
Effect). The Right to Be Forgotten? Europes Orwellian Internet Time Warp. Forbes. 23
May 2014. http://www.forbes.com/sites/techonomy/2014/05/23/the-right-to-be-forgotten-europesorwellian-internet-time-warp/
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Ibid.
Steven C. Bennett (professor of law, Hofstra University School of Law). The Right to Be Forgotten:
Reconciling EU and US Perspectives. 30 Berkeley Journal of International Law 174 (2012).
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Ibid.
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John Deighton (professor of marketing at Harvard Business School), Internet Economy: Valuing
the Webs Economic Impact; Tangible or Intangible, Its Effect on Business and Culture is Big.
Adage Digital. 24 June 2009. http://adage.com/article/digitalnext/digital-media-valuing-internet-seconomic-impact/137496/
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Lillian Edwards (professor of internet law at the University of Strathclyde, Glasgow; Specialist
Adviser to the Lords Select Committee on communications report on social media and criminal
law). Revenge porn: why the right to be forgotten is the right remedy. The Guardian. 29
July 2014. http://www.theguardian.com/technology/2014/jul/29/revenge-porn-right-to-be-forgottenhouse-of-lords
13
Ibid.
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Erik Sofge (contributing editor at Popular Mechanics). Could the Right to Be Forgotten End Revenge
Porn? Shape Magazine. 20 May 2014. http://www.shape.com/lifestyle/mind-and-body/could-rightbe-forgotten-end-revenge-porn
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3.4 Conclusion
Censorship, economic growth, and revenge pornography represent three of the most
commonly debated topics surrounding the right to be forgotten, but they are absolutely
not the only ones. The RTBF also affects criminal rehabilitation and expungement
policies as well as laws protecting minors. Given that the right to be forgotten has only
recently come to the forefront of academic literature on privacy rights, its effects on
public policy are still highly uncertain. While Europe has taken the lead in creating legal
precedent for a right to be forgotten, it remains to be seen whether the RTBF can be
reconciled with Americas political and legal norms in favor of freedom of speech and
freedom of press. Debaters should be ready to cope with these myriad issues, as the
debate over the right to be forgotten is a product of the modern information age which
cannot be adequately resolved without accounting for the social, technological and legal
contexts that give it new importance.
3.5 Cards
3.5.1 CensorshipAff
The right to be forgotten does not justify censorship.
Eric Posner (professor at the University of Chicago Law School). We All Have the Right
to Be Forgotten. Slate. 14 May 2014.
The European right to be forgotten is the most important right youve never heard of.
Its not a right to be purged from the memory of people who know you, but rather to
control how information about you appears online. On Tuesday, the European Court
of Justice explained what this means. The court held that Google violated a Spanish
lawyers right to be forgotten by refusing to eliminate links to embarrassing articles
about him in its search results. The outcome was decried by press freedom advocates
everywhere. In fact, its perfectly sensible. And it shows that, contrary to stereotype,
America is rigidly ideological about free speech, while Europe is pragmatic and flexible.
Back in 1998, the Spanish newspaper La Vanguardia published two notices about an
auction of the property of a Spanish lawyer named Mario Costeja, held to pay off his
debts. More than a decade later, anyone who Googled Costeja would see, in the search
results, links to those notices on the newspapers website. Costeja asked the Spanish
Data Protection Agency, which oversees the dissemination of personal data, to order
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3.5.2 CensorshipNeg
The right to be forgotten justifies censorship.
Ford 14 Matt Ford (associate editor at The Atlantic). Will Europe Censor This Article?
The Atlantic. 13 May 2014. http://www.theatlantic.com/international/archive/2014/05/europestroubling-new-right-to-be-forgotten/370796/2/
Another potential problem with the legal precedent is abuse. [Hypothetically], I can
demand takedown and the burden, once again, is on the third party to prove that it falls
within the exception for journalistic, artistic, or literary exception, Rosen warned in
2012, when EU commissioners proposed the right to be forgotten. This could transform
Google, for example, into a censor-in-chief for the European Union, rather than a neutral
platform. Failure to comply with the restrictions could result in heavy fines, he explained,
while compliance would mean a far less open Internet. Suppose, as seems likely due
to the noise in this case, the legal and truthful information that Google is supposed
to suppress is repeated in major news sources, blogs, tweets, Wales suggested. Is
Google required to start censoring large swathes of the web? Are they required to build
a complex censorship engine to block true information that a court has ruled must not
be linked to? Its crazy.
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3.5.3 EconomyAff
Clear international privacy standards are critical to the world Internet
economy
Bennett 12 Steven C. Bennett (professor of law, Hofstra University School of Law). The
Right to Be Forgotten: Reconciling EU and US Perspectives. 30 Berkeley Journal of
International Law 174 (2012).
Regulators and legal theoreticians on both sides of the Atlantic, moreover, recognize
that harmonizing international data protection laws may be key to maintaining the
health of the worlds Internet-based economy. Indeed, the risk that EU data restrictions
might prevent US companies from doing business in the European zone led the US
Department of Commerce to develop a Safe Harbor construct with the input and
approval of the EU. This approach has generally been successful and could be expanded.
An array of other means to promote harmonization of US and EU views on the balance
between privacy and free expression exist, and governments have pursued these options
in recent years. Additionally, the existence of long-standing concepts of fair information
practices provides a solid base for common discussion among regulators. Recent political
developments in the United States suggest that US regulators and law-makers may
be particularly receptive to discussions on the merits of enhanced privacy protection.
In December 2010, the FTC staff issued a preliminary report, aimed at providing
a broad privacy framework to guide policymakers, including Congress and industry.
The FTC Report called for a wholesale re-examination of the FTCs approach to
privacy protection. Shortly after the FTC released its 2010 report, the Department of
Commerce issued its own report on Commercial Data Privacy and Innovation in the
Internet Economy (Commerce Report). The Commerce Report set out four main
goals for US privacy protection policy: (1) to enhance consumer trust online through
the recognition of revitalized fair information practice principles; (2) to encourage the
development of voluntary, enforceable privacy codes of conduct through collaborative
efforts with government; (3) to encourage global interoperability; and (4) to ensure
nationally consistent privacy rules.
A right to be forgotten would provide a catalyst for US-EU engagement
and resolve business uncertainty.
Bennett 12 Steven C. Bennett (professor of law, Hofstra University School of Law). The
Right to Be Forgotten: Reconciling EU and US Perspectives. 30 Berkeley Journal of
International Law 174 (2012).
Given the breadth of developments in technology and usage of the Internet, and given
the increasing globalization of Internet-based commerce, changes in the substantive
standards for privacy appear almost inevitable. Thus, EU plans to revisit the data
protection directive to improve harmonization within the European Union itself may offer
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3.5.4 EconomyNeg
A right to be forgotten would damage the global economy
Kirkpatrick 14 David Kirkpatrick (technology journalist for Forbes and Vanity
Fair, member of the Council on Foreign Relations, founder and CEO of Techonomy, author of the bestselling book The Facebook Effect). The Right to Be
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3.5.5 Impact
The Internet is key to the overall economy
Deighton 9 John Deighton (professor of marketing at Harvard Business School),
Internet Economy: Valuing the Webs Economic Impact; Tangible or Intangible, Its Effect on Business and Culture is Big. Adage Digital. 24 June 2009.
http://adage.com/article/digitalnext/digital-media-valuing-internet-s-economicimpact/137496/
How can we quantify the economic impact of the internet? A new study we prepared with
Hamilton Consultants for the Interactive Advertising Bureau uses three methods to value
the contribution of the advertising-supported internet to the U.S. economy: Employment
value. The internet employs 1.2 million people directly to conduct advertising and
commerce, build and maintain the infrastructure and facilitate its use. Each internet
job supports approximately 1.54 additional jobs elsewhere in the economy, for a total
of 3.05 million, or roughly two percent, of employed Americans. The dollar value of
their wages is about $300 billion, or around two percent of U.S. GDP. Payments value.
The direct economic value the internet provides to the rest of the U. S. economy is
estimated at $175 billion. It comprises $20 billion of advertising services, $85 billion of
retail transactions (net of cost of goods) and $70 billion of direct payments to internet
service providers. In addition, the internet indirectly generates economic activity that
takes place elsewhere in the economy. If one used the same multiplier as for employment,
1.54, then the advertising-supported Internet creates annual value of $444 billion. Time
value. At work and at leisure, about 190 million people in the United States spend,
on average, 68 hours a month on the internet. A conservative valuation of this time is
an estimated $680 billion. The advertising-supported internet also helps the economy
by fostering innovation, entrepreneurship and productivity, particularly among small
businesses that create most new jobs in the U.S. In addition, larger companies in this
sector, such as Cisco, Google or Adobe, have been a haven of relative stability through the
current economic downturn and boost the U.S. balance of trade through their global sales.
Consider also the social benefits of the internet, harder to quantify but including the
power of access to information as well as greater flexibility in balancing work and family
obligations through telecommuting. The economic downturn is accelerating consumer
interest in social networks and online communities as a source of support. And 19%
of all U.S. marriages are now the result of bride and groom meeting via the internet.
When regulators start trying to constrain the internet, lets be aware of its enormous
and ever-increasing economic and social impact. The internet is an economic powerhouse
that drives U.S. competitiveness and productivity.
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3.5.8 Interpretations
The right to be forgotten is a legal interest
Koops 11 Bert-Jaap Koops (Professor of Regulation and Technology, TILT Tilburg
Institute of Law, Technology, and Society, Tilburg University, The Netherlands). Forgetting Footprints, Shunning Shadows. A Critical Analysis of the Right to Be Forgotten in Big Data Analysis. SCRIPTed, Volume 8, Issue 3, December 2011. http:
//script-ed.org/wp-content/uploads/2011/12/koops.pdf
Altogether, although the details of authors conceptualisations vary, there seems to be
a considerable common denominator in the literature about a right to be forgotten,
namely that someone has a significant interest (possibly to be protected in the form
of a legal right) in not being confronted by others with elements of her past, more in
particular with data from the (more remote) past that are not relevant for present-day
decisions or views about her.
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4.1 Background
Much of what we do and practice in Lincoln-Douglas debate rounds comes from precedents
set in Policy debate. As critical arguments, or kritiks, have once again started to
come to the forefront of strategy for many CX debaters, Lincoln Douglas debaters have
also brought the K back into fashion. Increasingly, important debate rounds, both
preliminary and elimination, are won or lost on critical arguments. Debaters are realizing
both the strategic and educational potential of critical arguments, especially in difficult
rounds. Often, they ask judges to reevaluate their role in adjudication of rounds with
role of the ballot arguments, redesigning conventional paradigms about what it means
to win a debate. It seems appropriate, then, to explore potential critical approaches in
our new topics to develop a complete understanding of possible areas of debate. Even a
debater who holds no interest in critical debate benefits from a basic comprehension of
common critical philosophy, both in general knowledge and specifically as it applies to a
new topic.
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Drawing the Line. The Economist. The Economist Newspaper, 04 Oct. 2014. Web. 07 Oct. 2014.
Ibid.
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Ibid.
Ibid.
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Wikipedia Founder: EUs Right to Be Forgotten Is deeply Immoral The Telegraph. Telegraph
Media Group, 06 Aug. 2014. Web. 08 Oct. 2014.
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Jowers, Peter. Risk, Sensibility, Ethics and Justice in the Later Levinas. Trust, Risk, and Uncertainty.
Ed. Sean Watson and Anthony Moran. Houndmills, Basingstoke, Hampshire: Palgrave Macmillan,
2005. N. pag. Print.
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Misery Merchants. The Economist. The Economist Newspaper, 05 July 2014. Web. 07 Oct. 2014.
Editorial: Should U.S. Adopt the Right to Be Forgotten Electronic Data Collection Raises Privacy
Issues. Connecticut Law Tribune. n.d. Web. 08 Oct. 2014.
9
Edwards, Lilian. Revenge Porn: Why the Right to Be Forgotten Is the Right Remedy. The Guardian,
29 July 2014. Web. 8 Oct. 2014.
8
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Toobin, Jeffrey. Google and the Right to Be Forgotten. The New Yorker. 29 Sept. 2014. Web. 08
Oct. 2014.
11
Ibid.
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Agamben, Giorgio, and Daniel Heller-Roazen. Homo Sacer. Stanford, CA: Stanford UP, 1998. Print.
Holmes, Dave, and Denise Gastaldo. Nursing as a Means of Governmentality. Journal of Advanced
Nursing 38.6 (2002).
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Foucault, Michel. The History of Sexuality. New York: Pantheon, 1978. Print.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Pantheon, 1977. Print.
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Index Blasts EU Court Ruling onright to Be Forgotten." Index on Censorship, 13 May 2014. Web.
08 Oct. 2014.
17
Stephens, Mark. Only the Powerful Will Benefit from the right to Be Forgotten The Guardian, 18
May 2014. Web. 8 Oct. 2014.
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Ibid.
Edwards, Jim. Google Is Being Forced To Censor The History Of Merrill Lynch - And That Should
Terrify You. Business Insider. 03 July 2014. Web. 09 Oct. 2014.
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Ford, Eddie. Balkanising the Web. Weekly Worker. n.d. Web. 08 Oct. 2014.
Dillon, Michael. Another Justice. Political Theory 27.2 (1999): n. pag.JSTOR. Web. 8 Oct. 2014.
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Mears, T. Lambert, Analysis of M. Ortolans Institutes of Justinian, Including the History and p. 75.
87
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23
But perhaps more interesting is the concept of citizenship itself. In most countries,
there exist thousands, if not millions, of people who are not technically citizens of that
country. So do these people also have the right to be forgotten, or since its a civil right,
does that not matter for these people? This is perhaps most fascinating in the case of
undocumented immigrants and refugee populations. Millions of immigrants in the United
States and other countries reside within the borders of that country, but are not actually
citizens. Additionally, there are millions of refugees worldwide who live in countries but
have never actually attained citizenship. A civil right to be forgotten may necessarily
exclude these people. Consequently, the negative could construct a powerful criticism of
the exclusion of these populations and others on the periphery of society from the right
to be forgotten.
Beyond these criticisms of the idea of civil rights lies a classic but currently not widely
seen kritik known as the gift kritik. Bruce Arrigo and Christopher Williams write
that the process of gifting rights through state apparatuses to people who are suffering
and marginalized (ie. individuals who are living in a state of humiliation due to things
about them on the internet) are counterfeit and fraudulent. The gifting of rights
without addressing the conditions surrounding the initial need for change creates a mere
ruse of solving the problem, and the majority feels they have done their part to help the
minority, both propping up their narcissism and creating a debt that the minority owes
to the majority. Such gifts allow the powerful to turn a blind eye to the conditions of the
suffering of others and ensure the powerful retain their oppressive status.
The ruse of the majority gift currently operates under the assumption of a
presumed empowerment, which it confers on minority populations. Yet, the
presented power is itself circumscribed by the stifling horizons of majority rule
with their effects. Thus, the gift can only be construed as falsely eudemonic:
An avaricious, although insatiable, pursuit of narcissistic legitimacy supporting
majority directives. . . the gift of the majority is problematic, producing, as
it must, a narcissistic hegemony, that is, a sustained empowering of the
privileged, a constant relegitimation of the powerful. Relying on Derridas
postmodern critique of Eurocentric logic and thought, we will show how
complicated and fragmented the question of establishing democratic justice is
in Western cultures, especially in American society. We will argue that what
is needed is a relocation of the debate about justice and difference from the
circumscribed boundaries of legal redistributive discourse on equality to the
more encompassing context of alterity, undecidability, cultural plurality, and
affirmative postmodern thought. 24
Instead, Arrigo and Williams advocate that these marginalized people should reconstruct
23
88
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25
Ibid.
89
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5 Aff Evidence
5.1 Definition- Right to be Forgotten
The right to be forgotten stems from a EU court decision that resulted in
a new legal framework.
Steven C. Bennet, [partner at Jones Day and professor of Conflicts of Law at Hofstra Law
School] TheRight to be Forgotten: Reconciling EU and US Perspectives, Berkeley
Journal of International Law Vol. 30, 2012.
Later in 2010, an EU press release announced that the European Union planned to
propose a new general legal framework for the protection of person- al data in the
European Union covering data processing operations in all sectors and policies of the
European Union.4 This comprehensive new legal frame- work would be subject to
negotiation between the European Parliament and the European Council of Ministers.5
The EU announcement specifically mentioned the right to be forgotten, described as
the right of individuals to have their data fully removed when it is no longer needed
for the purposes for which it was collected.6 A more comprehensive EU white paper,
released simultaneously, referenced the same concept and outlined the EU plan for
modernization of EU privacy law to address globalization and new technologies. . . .7
Similar EU explanations of the right to be forgotten have followed.8 The European
Union, moreover, has emphasized that privacy standards for European citizens should
apply independently of the area of the world in which their data is being pro- cessed.9
The right to be forgotten, could be a legal right, value, or policy goal.
Bert-Jaap Koops, [Professor of Regulation and Technology, Tilburg Institute of Law,
Technology and Society, Tilburg University], Forgetting Footprints, Shunning Shadows:
A Critical Analysis of theRight to be Forgotten" in Big Data Practice," SCRIPTed
Volume 8, Issue 3, December 2011.
Let us briefly look at the two components of the term right to be forgotten. First,
although it is often proposed as a right,5 some authors frame it rather as an ethical or
social value,6 or as a virtue or policy aim.7 Rouvroy uses the interesting formulation of
a right or rather a legitimate interest to forget and to be forgotten . 8 Thus, although
it may be conceived as a legal right (de lege lata or de lege ferenda), it can also be seen
as a value or interest worthy of protection or a policy goal to be achieved by some means
or other, whether through law or through other regulatory mechanisms.
90
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5 Aff Evidence
The most authoritative definition of the right to be forgotten is the
European Commissions definition.
Bert-Jaap Koops, [Professor of Regulation and Technology, Tilburg Institute of Law,
Technology and Society, Tilburg University], Forgetting Footprints, Shunning Shadows:
A Critical Analysis of theRight to be Forgotten" in Big Data Practice," SCRIPTed
Volume 8, Issue 3, December 2011.
To flesh out in more detail what a right to be forgotten entails and I will henceforth focus
particularly on the conceptualisation as a legal right we must look at how the current
policy and literature presents this right. This, however, turns out to be surprisingly sparse.
The major policy proposal is European Commissioner Viviane Redings mention of the
right as an element of the review of the Data Protection Directive (95/46/EC), which
envisions strengthening the so-called right to be forgotten, ie the right of individuals to
have their data fully removed when they are no longer needed for the purposes for which
they were collected or when he or she withdraws consent or when the storage period
consented to has expired.14
The right not to be forgotten can be conceptualized as regulation on data
rather than deletion of data.
Bert-Jaap Koops, [Professor of Regulation and Technology, Tilburg Institute of Law,
Technology and Society, Tilburg University], Forgetting Footprints, Shunning Shadows:
A Critical Analysis of theRight to be Forgotten" in Big Data Practice," SCRIPTed
Volume 8, Issue 3, December 2011.
However, two other approaches are visible in the literature that put forgetfulness in a
slightly different perspective. The first emphasises the link with the clean slate or fresh
start that has long been an element of several areas of law to foster social forgetfulness,
such as bankruptcy law, juvenile criminal law, and credit reporting.18 Similarly, Werro
conceptualises the right to be forgotten as a part of personality rights that, in Swiss
law, ensures that someone can preclude others from identifying her in relation to her
criminal past. This focuses not so much on deletion of data, but rather on regulating
the use of data: under Swiss law, publishing the name of someone with a criminal
record may be allowed after time has elapsed since conviction only if the information
remains newsworthy. . . .This is to say that privacy concerns might preclude the press
from revealing certain true and previously-publicized facts. However, the right to be
forgotten will not always prevail. When information about the past is needed to protect
the public today, there will be no right to be forgotten.19
91
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5 Aff Evidence
There are three different ways of conceptualizing the right not to be
forgotten in the literature.
Bert-Jaap Koops, [Professor of Regulation and Technology, Tilburg Institute of Law,
Technology and Society, Tilburg University], Forgetting Footprints, Shunning Shadows:
A Critical Analysis of theRight to be Forgotten" in Big Data Practice," SCRIPTed
Volume 8, Issue 3, December 2011.
Altogether, we can discern in policy and academic literature three perspectives on the
right to be forgotten: a dominant perspective stressing that personal data should be
deleted in due time, and two minority clean-slate visions: a social perspective that
outdated negative information should not be used against people, and an individual
self-development perspective that people should feel unrestrained in expressing themselves
in the here and now, without fear of future consequences. These perspectives are not
mutually exclusive, of course, but they do provide interestingly different nuances, which
may become important when we want to make the right to be forgotten operational.
Before I turn to that issue, let us first have a closer look at the current socio-technical
context in which the right to be forgotten is supposed to take shape.
92
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5 Aff Evidence
93
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5 Aff Evidence
94
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5 Aff Evidence
Privacy contracts would help standardize website terms of service
agreements and privacy policies.
Robert Kirk Walker, [J.D. Candidate at University of California, Hastings College of
Law], The Right to Be Forgotten, Hastings law Journal, Vol. 64, 2012.
Framing privacy rights in contractual terms also has the benefit of increasing data privacy
protections across the Internet by standardizing website terms of service agreements and
privacy policies. Currently, website privacy policies vary dramatically, even within a
network of sites operated by a single company.148 Policies are also subject to change
often suddenlyat the sole discretion of website operators.149 Further, the software
architecture of many websites incorporates data-gathering technologies provided by third
parties, such as advertising networks,150 that collect information about users either on
behalf of the host website or for their own business purposes. For example, according
to a Wall Street Journal investigative report, the nations 50 top websites on average
installed 64 pieces of tracking technology onto the computers of visitors, usually with no
warning.151 Certain types of data collection are subject to statutory restriction, such as
financial data,152 healthcare information,153 and information collected about children.154
But most personal data collected and stored by website operators (for example, a users
geographic location, web search and browsing history, personal messages and information
shared on social media sites, and files stored in the cloud) are not currently subject to
regulation.155
5.6 Democracy
Digital forgetfulness is necessary for democracy to function.
Jean-Francois Blanchette [University of Montreal] and Deborah G. Johnson, Data Retention and the Panoptic Society: The Social Benefits of Forgetfulness, The Information
Society: An International Journal, 18:1, 2002.
The argument for privacy as a social good thus encompasses privacy as an individual
good; the argument includes both. Privacy is not just something individuals want because
it makes them feel good or is good for them; rather, privacy is good for society insofar as
it promotes the development of the kinds of individuals who are essential for democracy.
A world in which there is no forgetfulnessa world in which everything one does is
recorded and never forgottenis not a world conducive to the development of democratic
citizens. It is a world in which one must hesitate over every act because every act has
permanence, may be recalled and come back to haunt one, so to speak. Of course, the
opposite is equally true: A world in which individuals are not held accountable over time
for the con- sequences of their actions will not produce the sense of responsibility that
is just as necessary to a democratic society. Thus, achieving the appropriate degree of
social forgetfulness is a complex balancing act, ever in tension between the need to hold
accountable, and the need to grant a fresh start.
95
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5 Aff Evidence
5.7 Dignity
Privacy protections are a way to respect personal dignity.
Robert G. Larson, [M.A., School of Journalism and Mass Communication, University
of Minnesota] Forgetting the First Amendment: How Obscurity-Based Privacy and
a Right to be Forgotten are Incompatible with Free Speech, Communication Law &
Policy, Vol. 18, 2013.
As James Whitman observed, Continental privacy protections are, at their core, a
form of protection of a right to respect and personal dignity. n96 Put another way,
European privacy rights are designed to protect ones image, name and reputation. n97
This is because dignity-based privacy rights are inherently normative, afforded to a
person by virtue of his participation in a society that values such rights. n98 Normative
privacy rights shift the burden, changing privacy from a power that may be exercised
by a person to a duty owed that person by other members of society. n99 Robert
Post illustrates this vesting of normative rights thusly: An individual does not earn
or create . . . honor through effort or labor; he claims a right to it by virtue of the
status with which society endows his social role. For example a king does not work
to attain the honor of his kingship, but rather benefits from the honor which society
attributes to his position. The price of this benefit is that society expects him to aspire
to personify these attributes and to make them part of his personal honor. n100 [*104]
Many modern incarnations of dignity-based privacy owe their origin to the German
principle of informationelles selbstbestimmung, or informational self-determination.
n101 Informational self-determination is a concept from German constitutional law that
establishes the right of the individual to decide how one will portray oneself to third
parties or the public, and whether and to what extent information about the individual
is made available to third parties. n102
96
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5 Aff Evidence
underlying the liberal view: Why is it not the duty of the state, instead of asking merely
whether a boy or girl has committed a specific offense, to find out what he is, physically,
mentally, morally, and then if it learns that it is treading the path that leads to criminality,
to take him in charge, not so much to punish as to reform, not to degrade but to uplift,
not to crush but to develop, not to make him a criminal but a worthy citizen. (Mack,
1909, p. 107)
Forgetfulness serves individual and social interests where juvenile offenders
are concerned.
Jean-Francois Blanchette [University of Montreal] and Deborah G. Johnson, Data Retention and the Panoptic Society: The Social Benefits of Forgetfulness, The Information
Society: An International Journal, 18:1, 2002.
Note that such a rehabilitative program is congruent with a number of different philosophical views on the na- ture of juvenile crime (and the concomitant views with regard to the most appropriate form of punishment). Whether one holds that a childs
criminal behavior is truly crimi- nal or rather simply naughty, whether the child is held
competent or not to understand the consequences of his or her actions, it is nevertheless
understood that, following a certain purgatory, a young persons mistakes should not
unduly burden his or her future goals: For those offences that could be called crimes
a child should not be ex- pected to have a criminal record for behaviour that may be
transient or reflect a particular stage of development (Bean, 1981, p. 131). This is the
justification for the special provisions within juvenile crime statutes aimed at removing the stigma of a juvenile court history. For example, the Code of Virginia includes
provisions for the automatic expungement of juvenile records, for of- fences that would be
felonies if committed as an adult, at the age of 29. All other offences may be expunged
at age 19, if five years have elapsed since the juveniles last contact with court . . . .
An individual may petition for expungement of all records pertaining to his/her case
after 10 years since the date of the last hearing in juvenile court. (Virginia State Crime
Commission, 1996, p. 4) There is thus recognition of the value of social forget- fulness
embodied in policies on juvenile crime records. However, echoing our previous discussion
on bankruptcy, it is important to note that the background discussion of these provisions
points to a coming together of social and individual interests. Individuals are allowed to
move on beyond their juvenile criminal records not just because it is good for them, but
also because society has an interest in turning juvenile offenders into law-abiding adults.
Social forgetfulness serves individual and social interests.
97
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5 Aff Evidence
98
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5 Aff Evidence
forgetting in the capacity of an objective, external observer. On the individual level,
if we did not have the ability to forget, we would share the fate of the mnemonists
described in well-documented case studies: Funes and Shereshevsky both experienced the
incurable condition they suffered from, for which the outside world actually celebrated
them, as a lifelong imprisonmentin other words, we would be unhappy. And even
if the accumulative and unselected memories resided outside our operational memory,
somewhere in a continuously accessible backup storage area, the implications would still
be similar. On the one hand, we would be unable to make use of one of the most important
elements of our personal informational autonomy, the freedom to decide whether to store
or share information about ourselves, to control the fate of our data, and to determine
what to share with whom, and for how long. As long as our backup storage is not a
notebook kept in a securely locked drawer, but a supposedly private, electronic mail box
or document storage facility accessible not only to the user but also to a circle of people of
unknown size and dubious intentions, the beautiful idea of information self-determination
remains an illusion.
99
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5 Aff Evidence
Data can be used in many ways to harm an individual.
Paul A. Bernal, [Lecturer in Information Technology, Intellectual Property and Media
Law at the School of Law, University of East Anglia, England], A Right to Delete?
European Journal of Law and Technology, Vol. 2, No. 2, 2011.
The extent to which data can be legitimately used in ways that those about whom the
data has been gathered would neither understand nor desire is wide-ranging. Even when
data is gathered with legal consent, the data subjects will not always (or even often)
understand that consent - often having scrolled through pages of legal language that
they dont even read let alone understand before clicking OK. Once this consent has
been given, what happens to the data is effectively beyond the control of the user - it
may be passed to third parties (within or without the terms of the consent), the use may
shift (again, within or without the terms of the consent), and even the nature of the
owners may change - for example as a business model evolves, or even if a company is
taken-over by another company. Data can be taken from a company by governmental
authorities through various legal means from subpoenas to the use of various forms of
legislation. Data protection law can protect the data from some of these risks - but for a
great many of them it is effectively powerless, partly as a result of the nature of consent
as noted above, partly as a result of the difficulties that data protection authorities have
in detection and enforcement.
5.12 Privacy
Privacy is morally necessary for situated subjects to flourish.
Julie E. Cohen [Professor, Georgetown University Law Center], What Privacy is For,
Harvard Law Review Vol. 126: 1994.
And once this point is established, privacys dynamism becomes clear. Lack of privacy
means reduced scope for self-making along the lines of the liberal ideal, or along other
lines. Privacy does not ne- gate social shaping. In a world with effective boundary
management, however, there is play in the joints, and that is better than the alternative. . . . Privacys goal, simply put, is to ensure that the development of subjectivity
and the development of communal values do not pro- ceed in lockstep.22 Privacy will
not always produce expressions of subjectivity that have social value, and here I mean
expressly to leave open the question whether there might be particular types of privacy
claims that do not merit protection or even respect.23 Even so, privacy is one of the
resources that situated subjects require to flourish.
Privacy is necessary for critical subjectivity.
Julie E. Cohen [Professor, Georgetown University Law Center], What Privacy is For,
Harvard Law Review Vol. 126: 1994.
100
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But here we must come back to privacy, for the development of critical subjectivity is a
realistic goal only to the extent that privacy comes into play. Subjectivity is a function
of the interplay between emergent selfhood and social shaping; privacy, which inheres in
the in- terstices of social shaping, is what permits that interplay to occur. Pri- vacy is
not a fixed condition that can be distilled to an essential core, but rather an interest
in breathing room to engage in socially situated processes of boundary management.21
It enables situated subjects to navigate within preexisting cultural and social matrices,
creating spaces for the play and the work of self-making.
5.13 Schizophrenia
Cyborg memory creates distorted self-image and schizophrenia; the right
to be forgotten is necessary to allow organic memory.
Kiyoshi Murata, [Director of the Centre for Business Information Ethics, School of
Commerce, Meiji University], Yohko Orito [Assistant Senior Professor of Law and Letters,
Ehime University], The right to forget/be forgotten, Crossing Boundaries, 2011.
On the other hand, Klein et al. (2004) point out that the sense of ones self depends on
memories of ones past experiences and capacity to call those experiences to mind. This
means that ones autobiographical or episodic memory deeply relates to ones personal
life story and, therefore, personal identity. According to them, the conditions which
are individually necessary and jointly sufficient to experience autobiographical memory
are (a) a capacity for self-reflection, (b) a sense of personal agency/personal ownership,
and (c) the ability to think about time or the sense of personal temporality. All of
these contain reference to a self-concept. In addition, Kimura (1981) mentioned that the
personal identity of an individual is usually determined based on his/her perception of
relationships with others, and social constructionism (e.g. Burr, 1995) insists that ones
personality is socially constructed as a consequence of encounters and relationships with
others. These can be interpreted that the capacity to distinguish self from others and to
cast others in ones own life story is necessary for one to establish ones identity. Klein
et al. (2004) suggest that the failure of development of this capacity would result in a
serious outcome such as autism or schizophrenia.
5.14 Self-Determination
The right to be forgotten stresses individual control over their personal
information.
Karen Eltis, [Associate Professor of Law, University of Ottawa, Visiting Scholar and
Associate Adjunct Professor, Columbia Law School], Breaking Through theTower of
101
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Babel: ARight to be Forgotten" and how Trans-Systemic Thinking Can Help ReConceptualize Privacy Harm in the Age of Analytics," Fordham Intell. Prop. Media &
Ent. L. J. Vol. 22, 2011.
As previously noted, the right to be forgotten, in addition to being contentious and
far from entrenched in European law or practice, does not lend itself to the American
context. Notwithstanding these issues, the legal thinking underlying the right to be
forgotten may itself be useful in reframing the right to privacy in the digital age, even
given what some jurisdictions would label the absolutist U.S. approach to freedom of
expression.86 Thus for example, concepts like la responsabilisation de lindividual roughly
translated as individual responsibility, appear in both European and American practice,
and help translate the E.U.s privacy principle into American dialect.87 For instance, the
French Senate Report addressing the Right to be Forgotten stresses a homo numericus or
protector of his own data approach to privacy, allowing the individual more control over
his or her personal informationgranting control over the duration of data retention and
facilitating easier deletion of posted information.88
The right to be forgotten is necessary for self-determination.
Karen Eltis, [Associate Professor of Law, University of Ottawa, Visiting Scholar and
Associate Adjunct Professor, Columbia Law School], Breaking Through theTower of
Babel: ARight to be Forgotten" and how Trans-Systemic Thinking Can Help ReConceptualize Privacy Harm in the Age of Analytics," Fordham Intell. Prop. Media &
Ent. L. J. Vol. 22, 2011.
Therefore, while at first glance the European approach (in a broader sense) appears to
complicate matters by emphasizing the seemingly obscure notion of dignity, it ultimately
helps clarify matters by adding a duty component for both the individuals and the
information-users to the ever-nebulous right to privacy.89 Moreover, in the German view,
for instance, privacy, conceived at least in part as informational self-determination,90
comprises both rights and duties. The German Constitutional Court, in its now-famous
Census decision, held that the basic right [of informational self-determination] warrants
[. . .] the capacity of the individual to determine in principle the disclosure and use
of his/her personal data.91 Rather than giving exclusive control or a property interest
to the data subject, the right of informational self-determination compels the State to
organize data processing so that personal autonomy will be respected. Thus, the right
both limits certain actions and obliges other activities on the part of the State.92 Thus,
control over personal information is the power to control a measure of ones identity.
This is indispensable to the free unfolding of personality.93 It is also a right to a rightful
portrayal of self,94 crucial in the digital age, as illustrated by the case of Dr. Russo above.
Russos own loss of control over his portrayal of self indeed catapulted the right to be
forgotten movement in Europe to where it is today, at least in part.
102
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Respecting privacy rights are a way to respect human dignity in the
Internet age.
Karen Eltis, [Associate Professor of Law, University of Ottawa, Visiting Scholar and
Associate Adjunct Professor, Columbia Law School], Breaking Through theTower of
Babel: ARight to be Forgotten" and how Trans-Systemic Thinking Can Help ReConceptualize Privacy Harm in the Age of Analytics," Fordham Intell. Prop. Media &
Ent. L. J. Vol. 22, 2011.
Privacy, as a personality right, is predicated on dignity.103 For example, Article 2 of
the German Constitution (Grund Gesetz) provides that: everyone shall have the right
to the free development of his personality insofar as he does not violate the rights of
others or offend against the constitutional order or against morality.104 In the privacy
context, the concept of dignity in Germany is encompassed within the right to free
unfolding of personality.105 In America, by contrast, dignity falls under the rubric of
privacy, including the zone of personal autonomy that emanates therefrom.106 While
very important differences exist between the approaches discussed above, conceiving of
the right to privacy as a personality right, free of territorial constraints, generally allows
the civilian legal method to grasp privacy as a zone of intimacy delineated by the basic
needs of personhood, rather than by space or ownership.107 Personality allows one to
define oneself in relation to society and can, therefore, be a very important impression
management tool in the Internet age. 108
Technologys increasing ability to remember perfectly seriously threatens
the right to control the use of ones own information.
Lilian Mitrou [Associate Professor, University of the Aegean, Department of Information
and Communication Systems] and Maria Karyda [Assistant Professor, University of the
Aegean, Department of Information and Communication Systems] Eus Data Protection
REform and the right to be forgotten- A legal response to a technological challenge?
presented in the 5th International Conference of Information Law and Ethics, 2012.
Perfect and precise remembering affects the claim of individuals to live and act without
leaving permanent traces or shadows24 and in this perspective interferes with a crucial
element of information privacy. Information storage ad perpetuum affects a right that is at
the very centre of the informational privacy: the right to informational self-determination,
the right to control the use of her own information25. Due to the persistency of information
and the absence of forgetting individuals are steadily confronted with their past. They
cannot escape it or re-create their present and/or future. Andrade emphasizes the
relationship of the right to be forgotten and the identity perspective by arguing that the
right to oblivion serves not only to be hidden from society but also as an instrument
through which individuals correct and re-project their images to society.
103
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5 Aff Evidence
Social Relationships
A right to be forgotten is necessary to maintain organic social relationships. Lilian
Mitrou [Associate Professor, University of the Aegean, Department of Information and
Communication Systems] and Maria Karyda [Assistant Professor, University of the
Aegean, Department of Information and Communication Systems] Eus Data Protection
REform and the right to be forgotten- A legal response to a technological challenge?
presented in the 5th International Conference of Information Law and Ethics, 2012.
As everyone depends upon others and their perceptions to engage in social or professional
transactions, long-lasting or perpetual information that brands a person, affects often
irrevocably - relationships, social status, current and future employment that person. A
lost or damaged reputation may have serious impact on the ability of a person to engage
in communicative processes and in the final analysis - in society. Persons are not only
deprived from the opportunity of a new start: Accessibility and durability of information
may lead to self-censorship and (digital but not only) abstinence from activities28: if
every act or opinion expressed can be easily recorded and recalled, persons may hesitate
to act and to participate in social and public life, which in turn affects the development
of democratic citizens [Blanchette and Jonhson 2003].
5.15 Switzerland
Switzerland has successfully implemented the right to be forgotten in a
way that balances with other interests.
Rolf H. Weber, [Chair Professor for International Business Law at the University of
Zurich], The Right to Be Forgotten: More Than a Pandoras Box? JIPITEC 120, 2011.
Switzerland is a good example for the development of the right to be forgotten. After a
first ground-breaking decision forbidding an artist to present a painting of the famous
late Swiss painter Hodler in an art gallery, courts have mainly dealt with situations in
which a convicted person wanted to avoid information about earlier criminal records
(of an official or unofficial nature) being drawn to public attention: Since criminals do
not remain of interest to the public indefinitely, the public should not have access to
the respective records after a certain time period. Insofar, court practice acknowledges
an individuals right to be forgotten as a criminal. For the courts, the discretion in
interpreting the term substantial amount of time that has passed since the occurrence
of criminal activity, therefore removing the interest of the public in being minded of these
events, is rather broad; obviously the evaluation depends on the circumstances, such
as which information is no longer of public interest and possibly counterproductive to
the goal of rehabilitating the person in question. Consequently, privacy concerns might
preclude the media from revealing certain truths and previously publicized facts if the
information is no longer newsworthy, but when the information about the past is still
needed to protect the public in present times, a right to be forgotten cannot be invoked.
104
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105
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106
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5.19 Polls
Most Americans believe in the right to be forgotten.
Maycotte, H.O. Americas Right to Be Forgotten Fight Heats Up, Forbes, 9/30/14,
www.forbes.com/sites/homaycotte/2014/09/30/americas-right-to-be-forgotten-fightheats-up/
For Google, and for many Americans, this issue hits close to our constitutional
home. And while Internet-savvy civilians are currently preoccupied with the
net neutrality fight on the homefront, the right to be forgotten is about to
become law in at least one state in 2015 likely pointing to a country-wide
rise in awareness over the coming months. In fact, in a study conducted by
Software Advice, 61% of Americans already believe that some version of the
right to be forgotten is necessary. Take a look at that 61%, though, and it
is clear that most Americans are torn on exactly what that version of law
would look like. The upcoming California law in January 2015 targets the
15% of Americans who believe that irrelevant information should be removed
for minors. As for the rest of the 61%, the majority of which believe the right
to be forgotten should be applied to everyone, they will have to wait. For
what? Well, for the definition of relevancy to lose its murkiness.
107
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Personal rights acquired by an individual by being a citizen or resident,
or automatic entitlements to certain freedoms conferred by law or custom.
Certain civil rights (such as the right to equality, freedom, good governance,
justice, and due process of law) are inalienable like human rights and natural
rights, whereas others (such as the right to hold a public office) depend on
ones conduct and can be lost. Also called civil liberties.
108
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5 Aff Evidence
concern that in cyberspace, we never grow past the moment of our greatest
humiliation, and that in the long run this record will make us a less mobile
society. We risk becoming serfs to our surfing history, as well as pawns to
be experimented on by companies, like Facebook, whose business is data.
The European Court found that search engines like Google must remove
information that is inadequate, irrelevant or no longer relevant when a
member of the public so requests. The ruling seems broad enough to apply
to resolved debts, revenge porn, indeed any information that affects peoples
honor, dignity or privacy.
109
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Further to that decision and in order to be compliant, search engines have
published specific forms to be filled out by claimants who want to request
the deletion of their information from search results. However, several complainants have received negative responses from search engines and have
submitted complaints to the European Data Protection agencies throughout
Europe claiming that search engines did not comply with the European Court
of Justices decision. Following these complaints, the European Data Protection agencies, after meeting with search engines representatives, decided
to implement a common tool box to handle complaints. That common toolbox will allow for a coordinated approach to the handling of claims alleging
that search engines have not adequately responded to right to be forgotten
requests. This coordination will be implemented by a network of dedicated
contact persons in charge of developing common case handling criteria to
manage complaints. The network will provide the data protection authorities
with: a common record of decisions taken on complaints, a dashboard to
help identify similar cases and difficult cases. This cooperation between the
European Data Protection agencies is intended to bring about the best possible coordination of the European Member States in their response to these
complaints, and to ultimately effectuate and enforce the right to be forgotten.
Furthermore, this coordination is intended to enable complainants to receive a uniform response to their complaints from data protection authorities
throughout Europe.
5.23 Myth-busting
Many objections to the right to be forgotten are based on
misunderstandings.
OConnor, John. Busted! European Commission tackles right to be forgotten myths,
Lexology, Association of Corporate Counsel, 9/26/14, www.lexology.com/library/detail.aspx?g=96f3325cb270-455a-852a-d20db8497aec
Myth: The judgment does nothing for citizens. Fact: The right to be
forgotten is about making sure that. . . citizens are in control of their personal
data; Myth: The judgment entails the deletion of content. Fact: The
Courts judgment only concerns the right to be forgotten regarding search
engine results involving a persons name. This means that the content
remains unaffected by the request lodged with the search engine, in its
original location on the internet; Myth: The judgment contradicts freedom of
expression. Fact: The right is not absolute and it must always be balanced
against other fundamental rights, such as the freedom of expression. . . the
right to be forgotten applies where the information is inaccurate, inadequate,
irrelevant or excessive for the purposes of data processing. This means that
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the company running the search engine must assess requests on a case by
case basis; Myth: The judgment allows for censorship. Fact: The right to be
forgotten does not allow governments to decide what can and cannot be online
or what should or should not be read; Myth: The judgment will change
the way the internet works. Fact: The internet will remain an important
source of information as content will remain in the same location. . . The way
search engines function will also remain the same; and Myth: The judgment
renders the data protection reform redundant. Fact: The reform includes an
explicit right to be forgotten. It is a fundamental modernisation of the rules
establishing a number of new rights, for instance the right to freely transfer
your personal data from one service provide to another, and the right to be
informed when the security of your data is breached.
5.24 Reputation
The issue of bad information being indexed is of the upmost significance.
Harrison, Richard. The Right to be Forgotten rule doesnt mean the end of free speech,
The Drum, 9/5/14, www.thedrum.com/knowledge-bank/2014/09/05/right-be-forgottenrule-doesn-t-mean-end-free-speech
While Google isnt omniscient, it does play an important role in our lives,
providing speedy access to information we desire and, most importantly,
influencing our perception of that data. For instance, recent World Economic
Forum research shows that people trust search engines second only to online
news sources. The first page of search results receives, on average, 92 per cent
of the traffic; nearly 70 per cent of people dont venture below the first four
results on that initial page. The issues around personal privacy arise when
those search results are misleading, inaccurate, outdated and even wrong.
Thats often the case with subjective content that surfaces information about
individual people versus objective content, rooted in substantive fact, like
wondering which season is best for planting petunias. When a persons search
results are wrong in some way, it indisputably impacts that individuals
personal and professional reputation. And the Court was correct to try to
tip the scales back just a bit toward personal privacy its wrong to suffer
so massively based purely on Googles algorithm, with no real recourse for
remediation.
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112
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5 Aff Evidence
alternatives often force people into consenting. And even a withdrawal of
consent does not (necessarily) allow a person to have his or her data removed
retroactively. An effective application of the purpose limitation principle
confining data processing to a previously defined scope might seem to
restrict the amount of potential harm in theory. But in an ever-increasing
personalised web (where every piece of personal data can be considered as
useful)30, the value of this principle has become questionable too. A right
to be forgotten could bring back effective control over what happens to an
individuals data.
The market wont solve data subjects may need the protection that is
offered by a right to be forgotten.
Ausloos, Jef. The Right to be Forgotten Worth Remembering?, Computer Law & Security Review, 11/30/11, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1970392
The Internet is evolving from a practically entirely free network to a primarily
commercial environment. In this new setting, personal data has become the
major currency. The greediness for this currency and the limitless data
collection capacities of modern technology, have caused a major power shift
between data users and data subjects. On the Internet, the latter are virtually
powerless against the first. Even if an individual knows that his or her
data is being collected/used, there is often not much that can be done in
order to prevent this. Notice and takedown procedures might take content
out of (public) sight, but do not normally result in removal from the data
users servers.57 Public outcry and a lot of media coverage have not led to
much improvement (yet). And the claim that competition is only one click
away has no value in this context. The free market argument depends on
transparency58 and does not take into account network externalities and
lock-in issues (supra). Further, the few true efforts that are made by market
players59, necessarily lack in credibility as their business model generally
depends on the collection and use of personal data. Finally, consumers are
showing a paradoxical demand for more data collection60, which illustrates
that they do not necessarily want more privacy (oh, what a vague concept),
but especially want more control. Concluding, it has become clear over the
last few years that it is impossible to rely on the market alone to give (back)
control to individuals. Code and especially the law will be necessary to assure
a healthy and balanced market.
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114
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115
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6 Neg Evidence
6.1 Abuse
There are many potentials abuse of the right to be forgotten.
Jeffrey Rosen, [Professor of Law at George Washington Law School, legal affairs editor of
The New Republic and a nonresident Senior FOllow at the Brookings Institution], The
Deciders: The Future of Privacy and Free Speech in the Age of Facebook and Google,
Fordham Law Review, Vol. 80, 2012.
As proposed, however, the right to be forgotten seems to create a legal entitlement for
people to remove photos they have posted voluntarily, even after those photos have been
widely shared.38 In this sense, it clashes dramatically with American notions of free
expression. We have examples of this broader conception of the right to be forgotten in
a recent decision from Argentina, which dramatically expanded the liability of search
engines like Google and Yahoo for offensive photographs.39 Last year, an Argentine judge
held that Google and Yahoo were liable for moral harm and violating the privacy of
Virginia da Cunhaa pop star who unwisely posed for some racy pictures, which got
posted on the internet, and thought the better of it.40 These were not pornographic or
obscene, and they were voluntarily posted.41 But she changed her mind. She said, in
effect, My dignitary rights are violated. Take down the pictures. The Argentine judge
agreed and ordered Google and Yahoo to take the pictures down. Essentially, Yahoos
response was, Technologically, it is so hard for us to do this. We cannot selectively just
remove these pictures, which have been widely shared. Instead, we are going to have to
remove all references to this person entirely. The potentials for abuse of this right to be
forgotten are obvious. Pop stars who take racy pictures often have a habit of running for
political office, especially in Italy. You could well imagine a candidate on the campaign
trail, thinking better of those youthful pictures and trying to remove all references to
herself in order to protect herself from embarrassment.
Governments can and have used the right to be forgotten for nefarious
purposes.
Schwartz, Molly. The right to be forgotten and the quagmire of global Internet
regulation, R Street, 9/2/14, www.rstreet.org/2014/09/02/the-right-to-be-forgottenand-the-quagmire-of-global-internet-regulation/
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There are already clear indicators and examples that some governments are
moving toward tighter regulation of the Internet. Within the past year, Russia
has codified existing police practices into law by passing legislation that blocks
websites, restricts electronic foreign financial transactions, heaps a series of
new regulations on popular blogs and allows the government to put people
in prison for retweeting extremist material. Most recently, the Duma passed
a law that restricts the personal data of Russian citizens from being stored
on servers outside of Russia which, if enforced, will effectively ban the use
of websites ranging from Facebook to Amazon unless they locate all data
centers in Russia. The Russian government has wasted no time capitalizing
on the right to be forgotten ruling to further censor the global Internet.
The Russian Public Chamber submitted a recommendation to the Duma
calling for the introduction of a right to be forgotten that would affect not
only Russian search engines, but also foreign ones like Google and Yahoo.
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because no use is made of personal data stricto sensu 37, the individual cannot have a
right to be forgotten with regard to this information.
6.4 Censorship
The right to be forgotten creates another opportunity for censorship.
Jef Ausloos, [Interdisciplinary Centre for Law and ICT of the University of Leuven], The
Right to be Forgotten- Worth Remembering? Computer Law & Security Review 2012.
One of the most repeated arguments against a right to be forgotten is that it would
constitute a concealed form of censorship.38 By allowing people to remove their personal
data at will, important information might become inaccessible, incomplete and/or misrepresentative of reality. There might be a great public interest in the remembrance of
information.39 One never knows what information might become useful in the future.40
Culture is memory.41 More specifically, the implementation of a fully-fledged right to be
forgotten might conflict with other fundamental rights such as freedom of expression
and access to information.42 Which right should prevail when and who should make this
decision? Finally, defamation and privacy laws around the globe are already massively
abused to censor legitimate speech. The introduction of a right to be forgotten, arguably,
adds yet another censoring opportunity.
The right to be forgotten is merely the right of de-indexing no longer
relevant links.
Trguer, Flix. Right to Be Forgotten: With Free Expression Under Threat, Europe
Needs a Marco Civil Moment , Global Voices, 9/11/14, globalvoicesonline.org/2014/09/11/rightto-be-forgotten-with-free-expression-under-threat-europe-needs-a-marco-civil-moment/
But I must underline that the ruling itself is not literally about the right to
be forgotten. More accurately, it is a ruling that recognizes a right to the
de-indexation of links attached to a persons name in search engines, based on
the 1995 EU law on the protection of personal data. This means that when
a given item is de-indexed by Google in the search results to a query that
includes a persons name, it remains accessible through the search engines as
long as the search query does not include that name. So it is quite a far cry
from an actual right to be forgotten.
The responsibility of judging attempts to invoke the right to be forgotten
is in the hands of private companies.
Trguer, Flix. Right to Be Forgotten: With Free Expression Under Threat, Europe
Needs a Marco Civil Moment , Global Voices, 9/11/14, globalvoicesonline.org/2014/09/11/right-
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to-be-forgotten-with-free-expression-under-threat-europe-needs-a-marco-civil-moment/
To me, the worst aspect of the ruling is the fact that, while it recognizes
that the right to de-indexation is not absolute, it is the responsibility of
search engines to make a judgment about whether a persons request for
de-indexation of online content is valid. The Court noted that the search
engines decision on the request would depend on the role played [by the
claimant] in public life. Accordingly, the threshold for de-indexing content is
higher for a public figure than for the average citizen. So the ruling effectively
gives Google the task of drawing the boundaries of whom and what belongs
to the public sphere. By doing so, it is reinforcing the dangerous trend toward
privatized online censorship a trend weve gotten used to in the context of
copyright enforcement.
As it currently exists, the right to be forgotten cant lead to legitimate
rules.
Trguer, Flix. Right to Be Forgotten: With Free Expression Under Threat, Europe
Needs a Marco Civil Moment , Global Voices, 9/11/14, globalvoicesonline.org/2014/09/11/rightto-be-forgotten-with-free-expression-under-threat-europe-needs-a-marco-civil-moment/
First, Google is acting as a de facto public body and putting together a
consultation on how best to implement the right to be forgotten. Google has
denounced the ECJ ruling but is forced to implement it, and they logically
need to come up with guidelines considering that both the ruling itself and EU
law are very vague. But I find it odd that instead of calling for a legislative
debate on workable principles regarding the privacy/free speech balance, the
company instead created an expert committee to issue these guidelines.
Even though the committee includes very commendable people such as Frank
La Rue (the outgoing UN special rapporteur for freedom of expression), this
process further legitimizes a form of private rule-making for the regulation
of fundamental rights on the Internet, and as such it just cannot lead to
legitimate rules.
Accurate and lawful information can be removed when one asserts the the
right to be forgotten.
Hughes, Thomas. The Slippery Slope of Internet Censorship, Huff Post, 9/11/14,
www.huffingtonpost.co.uk/thomas-hughes/the-slippery-slope-of-int_b_5790772.html
So what does this right to be forgotten ruling mean in practice? Someone
whose personal information appears as a result of a search query may now fill
in a simple online form to request that Google, who was the subject of the
original ruling, or other search engines, remove specific links from appearing
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in searches. Legality is not the primary issue here - the information may be
perfectly lawful and accurate. And the person requesting the removal does
not have to show any harm or prejudice as a result of the information being
made available through a search. If Google decides that the information is
indeed inadequate, irrelevant or no longer relevant the link will be erased.
The information will still exist - you just wont be able to find it via that
search engine.
Enforcing the right to be forgotten represents a form of censorship.
Hughes, Thomas. The Slippery Slope of Internet Censorship, Huff Post, 9/11/14,
www.huffingtonpost.co.uk/thomas-hughes/the-slippery-slope-of-int_b_5790772.html
Search engines like Google are the main gateway to information for almost all
of us nowadays, so deleting a search result is effectively a form of censorship.
When a handful of search engines undertake almost all searches, the service
these giants provide is a form of public resource, although this is not to argue
that government regulation is automatically the answer. Nevertheless, surely
its inappropriate to put one of the worlds most powerful private companies
in the position to solely determine what is or isnt legitimate expression, and
decide what information people can have access to. Moreover, the public
position of most such intermediaries is that they also do not want to play
such a role.
The need for remembrance may make it so that the right to be forgotten
is harmful censorship.
Ausloos, Jef. The Right to be Forgotten Worth Remembering?, Computer Law & Security Review, 11/30/11, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1970392
SUBTLE CENSORSHIP - One of the most repeated arguments against a right
to be forgotten is that it would constitute a concealed form of censorship.38 By
allowing people to remove their personal data at will, important information
might become inaccessible, incomplete and/or misrepresentative of reality.
There might be a great public interest in the remembrance of information.39
One never knows what information might become useful in the future.40
Culture is memory.41 More specifically, the implementation of a fully-fledged
right to be forgotten might conflict with other fundamental rights such as
freedom of expression and access to information.42 Which right should prevail
when and who should make this decision? Finally, defamation and privacy
laws around the globe are already massively abused to censor legitimate
speech. The introduction of a right to be forgotten, arguably, adds yet
another censoring opportunity.
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6 Neg Evidence
121
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6 Neg Evidence
against third party intermediaries are also threatening freedom of speech in Argentina, as
the case of Virginia Da Cunha shows. The Argentine pop star had posed for racy pictures
when she was young, but recently sued Google and Yahoo to take them down, arguing
that they violated the Argentine version of the right to be forgotten. Google replied
that it could not comply technologically with a broad legal injunction demanding the
removal of the pictures, and Yahoo said that the only way to comply would be to block
all sites referring to Da Cunha for its Yahoo search engines. Nevertheless, an Argentine
judge sided with Da Cunha and after fining Google and Yahoo, ordered them to remove
all sites containing sexual images that contained her name. The decision was overturned
on appeal, on the grounds that Google and Yahoo could only be held liable if they knew
content was defamatory and negligently failed to remove it. But there are at least one
hundred and thirty similar cases pending in Argentine courts demanding removal of
photos and user-generated content, mostly brought by entertainers and models. The
plaintiffs include the Sports Illustrated swimsuit model Yesica Toscanini; when a user
of Yahoo Argentina plugs her name into the Yahoo search engine, the result is a blank
page.[13]
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6 Neg Evidence
TigerText is a small-scale model of this alternative.
Jeffrey Rosen [Professor of law at the George Washington University and the legal affairs
editor of The New Republic], Free Speech, Privacy, and the Web that Never Forgets,
Journal on Telecommunication & High Technological Law, Vol. 9, 2011.
Facebook has been reluctant to encourage these apps at the moment because of its
business model, which encourages it asserting ownership over its data and targeting apps
on the basis of it. But I think that soft nudges from privacy regulators, not creating
a legal right to delete, but creating incentives to develop apps that would allow this,
would be welcome. A small-scale model of this is TigerText, which is the text messaging
system that allows you to say that you want your texts to disappear after three months
or three days.52 (This was named before the Tiger Woods text-messaging scandal.) And
a new German Facebook app, X-Pire, would also create an option of disappearing data.53
We need more apps along these lines, and more support for them from the Facebook
platform.
6.7 Enforcement
Enforcing the right to be forgotten is too complicated.
Jeffrey Rosen, [Professor of Law at George Washington Law School, legal affairs editor of
The New Republic and a nonresident Senior FOllow at the Brookings Institution], The
Deciders: The Future of Privacy and Free Speech in the Age of Facebook and Google,
Fordham Law Review, Vol. 80, 2012.
Enforcement is also difficult. Against whom is the right of action? Just Google and
Yahoo? Against faithless friends who share the photographs? Under what circumstances
should photographs be left up in the public interest? Do we want a commission of
forgetfulness to be making case- by-case determinations of what is in the publics interest
to demand? As Peter Fleischer, the Global Privacy Counsel at Google, has noted, the
right to be forgotten is a sweeping concept that can include a series of very different
claims.42 The least controversial is the right to delete something I post online on my
own Facebook page or albuma service that most platforms already provide. But the
right to delete becomes more controversial if I post something and someone else copies
it onto another siteas in the case of the widely circulated photos of the Argentinian
pop star. Surely, Fleischer suggests, internet platforms should not be asked to delete
pictures of me from someone elses album without the owners consent.43 Even more
difficult, he notes, is the question whether I should have the right to delete truthful but
embarrassing information that someone else posts about mea request that squarely
pits values of privacy against free speech.44 And the question how to enforce different
national judgments makes the problem still harder, as Fleischer notes: if a German court
decides that German murderers should be able to delete evidence of their conviction after
123
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a specified time has passed, should that deletion apply only in Germany or across the
globe, and who should enforce it?45
124
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The right to be forgotten conflicts with other freedoms.
Cecile de Terwangne, [Universite de Namur Research Center] Internet Privacy and the
Right to Be Forgotten/Right to Oblivion, VII International Conference on Internet,
Law & Politics, February 2012.
As already commented concerning the right to forget the judicial past, the right to oblivion
enters into conflict with important other rights, freedoms and legitimate interests, in
particular, with freedom of expression and freedom of the press. It impinges on the
conservation of full archives, as developed in point 2.2.2 relating to Internet newspaper
archives. For the same reason, it hurts the duty of mem- ory. It is a hindrance to
historical research. It also has an impact on business continuity, management of employee
files, the obligation to keep evidence, etc.38 And one inevi- tably has to take into account
the obligation to retain data for public security purposes. The Asociacion Profesional
Espanola de Privacidad puts it a slightly different way, presenting it as a dilemma. In
the opinion of this association, unlike the right to object, the right to be forgotten has a
retroactive effect. Conse- quently, the question is whether individuals must be responsible
sine die for their past actions or whether it is desirable for them to have the right to
rewrite their past, and consequently that of others.39
An explanation of what has caused the increased discussion of digital
privacy rights.
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
The recent surge of interest in privacy is not without reason, with a bevy
of privacy issues emerging. Smartphone and mobile application developers
have faced lawsuits over data privacy.12 Major corporations have experienced
serious security breaches and data leaks.13 And Inter- net businesses have
come under fire for making changes to their Web site privacy policies.14 A
substantial motivating factor behind the push for privacy reform and the call
for the creation of a privacy right based on obscurity is the so-called privacy
paradox.15 Despite substantial news coverage of the privacy implications
of recent events and vigorous public debate about privacy, studies show
that many Internet users are not particularly vigilant about protecting their
privacy.16 It has been suggested that consumers are not sufficiently familiar
with technology and data collection to adequately protect their privacy.17 To
some extent, this is undoubtedly true: Computer technology has advanced
with startling rapidity over the last decade,18 and not everyone has been
willing or able to keep pace.19 However, recent research and literature and,
given the recent media prominence that privacy is enjoying, perhaps logic as
well indicate that awareness of privacy implications is no longer limited
125
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to only the most tech-savvy individuals, but rather, a majority of computer
users have some degree of understanding about and concern for their privacy
online.
The issue of digital privacy is largely a result of individual shortsightedness.
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
Regardless of their degree of computer and privacy literacy, many Internet
users are substituting obscurity for privacy.21 Rather than employ technological means to ensure the secrecy of private information, they are relying
on the probability that others will be either unable or unmotivated to find
the information or that if it is found, nobody will care.22 [W]hen given
the choice, Internet users almost always spurn or misuse technical [privacy]
controls, turning instead to social norms of appropriateness and to informal
assessments of practical obscurity,23 one scholar wrote.
The privacy value of obscurity on the Internet is less than one would
expect.
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
Communication on the Internet differs from that of other media in many
important respects.25 Such communications are often asynchronous,26 and
users are likely to be anonymous, pseudonymous or invisible to other users.27
Therefore, it is not always possible for someone who posts material on the
Internet to know when the postings are viewed by others, who those others
are, or which postings were viewed.28 In light of the generally unknowable
nature of other Internet users, it stands to reason that assumptions about
ones audience may be and in reality, often are wildly inaccurate.29 The
eventual audience for information published on the Internet often includes a
number of unexpected or unintended viewers.30 As a result, the privacy value
of obscurity in the online world is significantly lower than what many users
expect.31 Indeed, in light of the prevalence of such unrealistic expectations,
Jim Adler32 coined the term privacy vertigo, which refers to the uneasiness
felt when confronted with the abrupt realization that ones previous-held
beliefs about his audience do not accurately reflect reality.
126
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Free expression of truthful information can be stifled by the right to be
forgotten
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
The European Commissions draft regulation, the White Houses Consumer
Bill of Privacy Rights, and the FTC Report are all indicative of growing
governmental recognition of Internet users tendency to rely on obscurity
(and oftentimes, those users subsequent experience of privacy vertigo). But
for all the benefits promised by stronger privacy laws that account for users
practices, such legal measures threaten to do grievous and unavoidable harm to
free speech. As Peter Fleischer34 wryly observed, [P]rivacy is the new black
in censorship fashion.35 He writes that, traditionally, one whose reputation
was harmed as a result of anothers speech needed to bring a claim under a
defamation theory in order to recover.36 But to the chagrin of many plaintiffs,
defamation law requires that the speech be false;37 truth is a defense to such
a claim.38 Privacy is far more elastic, Fleischer notes, because privacy
claims can be made on speech that is true.
The concept of privacy is not quite the same as obscurity.
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
It is important to note that obscurity is not synonymous with privacy, but is
merely a condition upon which one might base an expectation of privacy.59
To some extent, it represents the conflation of related ideas. The core tenet of
obscurity is that information, though freely and publicly available, is unlikely
to reach any third party observers who are interested in it or who are in a
position to act on it.60 This notion of obscurity stems from sociocultural
expectations, encouraging outrage and indignation when others dont act as
expected, or are motivated by reasons not generally understood.61 It also
incorporates aspects of anonymity, relying on the removal of the [observer]
from our ordinary social circle for assurance that the information will not
reach those to whom we would prefer it not be disclosed.62 And it imputes
our own circumstances and limitations to others, seeking to justify our beliefs
about what can and cannot be found, regardless of the validity of those
beliefs.63
127
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A broad interpretation of the right to be forgotten
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
The right to be forgotten, tentatively codified in the European Com- missions
draft General Data Protection Regulations,92 gives a person extensive control
over data about that person that is held by others.93 Such a right is a
reflection of the European belief that privacy is a dignitary concern,94 and
highlights the contrast between the dignity-based notions of privacy in Europe
and the autonomy-based formulation of privacy in the United States.
The right to be forgotten as a right to personal dignity
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
As James Whitman observed, Continental privacy protections are, at their
core, a form of protection of a right to respect and personal dignity.96 Put
another way, European privacy rights are designed to protect ones image,
name and reputation.97 This is because dignity- based privacy rights are
inherently normative, afforded to a person by virtue of his participation in a
society that values such rights.98 Normative privacy rights shift the burden,
changing privacy from a power that may be exercised by a person to a duty
owed that person by other members of society.99 Robert Post illustrates this
vesting of normative rights thusly: An individual does not earn or create . . .
honor through effort or labor; he claims a right to it by virtue of the status
with which society endows his social role. For example a king does not work
to attain the honor of his kingship, but rather benefits from the honor which
society attributes to his position. The price of this benefit is that society
expects him to aspire to personify these attributes and to make them part
of his personal honor.100
Privacy rights are inconsistent with the First Amendment right to freedom
of expression.
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
Despite the venerable American tradition of free speech, privacy rights are
still very much in conflict with the First Amendment,129 and the degree of
128
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protection afforded free speech is not so close to the absolutist ideal130 that
it excludes privacy entirely. The idea of granting a privacy right that stems
from obscurity flies in the face of long-standing First Amendment theory
and fundamental free speech principles, however.131 Fifty years ago, Thomas
Emerson published a multi-faceted theory of the First Amendment.132 In
that article, he stated that free speech was necessary for four reasons: (1)
as assuring individual self-fulfillment, (2) as a means of attaining the truth,
(3) as a method of securing participation by the members of the society
in social, including political, decision-making, and (4) as maintaining the
balance between stability and change in the society.133 In 2004, Vincent
Blasi likewise enumerated some basic values that were advanced by a right of
free speech: (1) individual autonomy; (2) truth seeking; (3) self-government;
(4) the checking of abuses of power; and (5) promotion of good character.134
The first three values from either list correspond respectively to the selffulfillment theory, as established and developed by Thomas Emerson and
C. Edwin Baker; the marketplace of ideas, from the works of John Milton
and Oliver Wendell Holmes Jr.; the theory of self-governance, suggested by
Louis Brandeis and refined by Alexander Meiklejohn. Emersons final idea
that free speech serves as a social safety valve by allowing people to vent
frustrations135 can be seen in Bakers refinements of the self-fulfillment
theory,136 in the marketplace of ideas theory,137 and in Meiklejohns selfgovernance theory.138 Blasis fourth and fifth values checking abuses of
power and promoting good character are embodied in his checking value
theory.139
A key component to social welfare is the right to access knowledge.
Larson III, Robert. Forgetting the First Amendment: How Obscurity-Based Privacy
and a Right to Be Forgotten Are Incompatible with Free Speech18:1, 91-120, 2013 DOI:
10.1080/10811680.2013.746140, http://dx.doi.org/10.1080/10811680.2013.746140
As that passage suggests, the self-fulfillment theory finds justification for
a right of free speech in both societal and individual values.142 The social
element of the theory considers the role that an individual plays in society.143
Observing that human beings are social creatures, and that culture is created
as a result of the participation of individuals in a society, Emerson arrives
at two principles: (1) that the purpose of society . . . is to promote the
welfare of the individual; and (2) that every individual is entitled to equal
opportunity to share in decisions which affect him.144 Thus, the individual
has a duty to work cooperatively with others in the society, which in turn
both entitles and encourages him to speak his mind.145 In order to maximize
the benefit of the relationship for the both society and the individual, the
individual requires a right to access knowledge, so as to form ideas and
opinions.
129
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6.10 Implementation
The right to be forgotten raises a host of implementation problems.
Meg leta Ambrose [Doctoral candidate, ATLAS Institute at the University of Colorado,
fellow at CableLabs and the Harvard Berkman Center for Internet and Society] and Jef
Ausloos [Doctoral candidate, Interdisciplinary Center for Law and ICT at the University of
Leuven, Blegium], The RIght to be Forgotten Across the Pond, Journal of Information
Policy 3 (2013): 1-23.
How should this right deal with ubiquitous and opaque cross-platform data transfers? One
could request personal data to be deleted on one site, but meanwhile the information
might have been copied and/or anonymized already and sent downstream. All these
potential third-party uses (and/or secondary uses) are quite difficult to trace and
do not necessarily take into account deletion of the primary material.84 Relatedly, the
right raises some technical implementation issues. Deleting personal information from
130
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an initial system and those downstream is no simple task. Records are overwritten
because of updates and corrections, but systems can rarely distinguish between the two.
Overwriting a record generally deletes the earlier version of the record. As the data moves
downstream the accountability issues travel with and grow in complexity. Data tethering
is an important design element for data moving downstream to secondary organizations.
Data tethering means when data changes at its source, the change is reflected through
the entire food chain. Every copied piece of data is virtually tethered to its master copy,
explains Jeff Jonas, Chief Scientist of the IBM Entity Analytics group.85 A system that
is not tethered will likely contain many errors, at least until the database is reloaded.86
In addition to conceptual and jurisdictional issues, the technical implementation of an
effective right to be forgotten raises the need for corporate and design advancements
The right to be forgotten has and can been used to protect individuals
like pedophiles.
The Local. Right to be forgotten censors Fritzl story, Austrias News in English,
9/4/14, www.thelocal.at/20140904/right-to-be-forgotten-censors-fritzl-story
The judicial decision in May effectively forced the search giant to establish
a mechanism whereby individuals - or people acting on their behalf - could
petition Google to forget the results of specific search terms. Google senior
vice president and chief legal officer David Drummond outlined the challenge
Google faces trying to implement the courts decision. [The] challenge is
figuring out what information we must deliberately omit from our results,
following a new ruling from the European Court of Justice, he wrote. The
first results relating to Austria are now being censored, according to a report
from the British tabloid, The Daily Mail. The Mail reports that searches
leading to one of their articles from May 2009 on the Austrian incest rapist
Josef Fritzl has now been officially omitted from search results. The piece
was based on extracts from the book The Crimes of Josef Fritzl: Uncovering
the Truth. Publisher Harper Collins told MailOnline that it does not know
who sent the request. Google has no obligation to disclose who had requested
the search to be wiped from their servers.
The right to forget is hard to actually implement.
The Jordan Times. The prospects for a global right to be forgotten , 8/31/14,
www.albawaba.com/business/google-personal-presence600365
To begin with, the right to be forgotten is hard to implement, as Google
could censor its search results in Europe, but users elsewhere in the world
could see that information and just send it to anyone in Europe. Additionally,
with basic technical know-how or by downloading an unblock product,
131
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anyone can change his/her country IP address and browse the web without
local limitations just like users in Arabian Gulf countries do all the time
to access blocked sites. Every country, or region, will ask Google to censor
different information and the result will be a mess of censored/uncensored
information by country that will not provide global removal of information.
Some countries may even take an opposite stance, demanding that the right to
public freedom of information prevents Google from removing any information
from the public record. Simply, any person should be able to know anything
about anybody if its public record.
6.11 Jurisdiction
Even if the right to be forgotten became a civil right, its unclear who
would have jurisdiction over it.
Steven C. Bennet, [partner at Jones Day and professor of Conflicts of Law at Hofstra Law
School] TheRight to be Forgotten: Reconciling EU and US Perspectives, Berkeley
Journal of International Law Vol. 30, 2012.
Indeed European case law tends to extend well beyond US views on the reach of
jurisdiction, based on Internet activity.118 In substance, so long as ac- tions on the
Internet have known effects in a European state, EU courts (and, by implication, EU
regulators) may exercise jurisdiction.119 In addition to the Yahoo! case, where a French
court held Yahoo! responsible for permitting sale of Nazi-themed materials in France, and
a host of other similar cases,120 in the ecent criminal prosecution of Google executives in
Italy,121 the Italian court held that, because at least some of the processing of information
(a video of a child with Downs Syndrome being abused by other youths) took place in
Italy, the court could properly exercise jurisdiction. Thus, if processing of personal
data through EU equipment122 includes a users downloading of Internet content
somewhere in Europe,123 the European Union theoretically could exer- cise world-wide
jurisdiction over Internet actors.124 The disparity of views on the reach of jurisdiction
over Internet-related ac- tivities can produce uncertainty, additional cost (in responding
to varying stand- ards) and unnecessary barriers to trade (as firms may be deterred
from activities that place them at risk of regulation in unfavorable jurisdictions).125 In
addition, the risk that judicial and administrative orders in one jurisdiction may not be
en- forced in other countries may tend to deter effective implementation of rules.126
Enforcing the right to be forgotten entails too many practical difficulties.
Jef Ausloos, [Interdisciplinary Centre for Law and ICT of the University of Leuven], The
Right to be Forgotten- Worth Remembering? Computer Law & Security Review 2012.
How should the right deal with ubiquitous and opaque cross-platform data transfers? One
could request personal data to be deleted on one site, but meanwhile the information
132
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might have been copied and/or anonymised already. All these potential third-party
uses (and/or secondary uses) are practically untraceable and do not necessarily take
into account deletion of the primary material.4344 Moreover, the right also raises some
technical implementation issues (infra, Code). In short, besides traditional jurisdictional
issues, the actual implementation of an effective right to be forgotten brings along many
practical difficulties as well.
133
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has complied with your demand, the information will still be available for a while in the
results presented by the search engines in the cache memory.34 It can take some days
or weeks till the next indexation of the site will bring an updated version to the cache
memory. Dur- ing the time that the data are publicly available, interested people may
download and share the information without you being aware of it. If you discover that,
for example, other Internet users have downloaded and re-published the infor- mation
on their website, you will have to do the cleaning job again. And at some point in this
Sisyphean activity, you will probably face great difficulty in convincing the website editor or the inertia of your interlocutor. Moreover, the archi- tecture of information systems
has become much more complex, with the numerous links rendering any deletion of data
tricky and expensive.3
6.14 Privacy
The right to be forgotten assumes a notion of privacy that is outdated.
Kiyoshi Murata, [Director of the Centre for Business Information Ethics, School of
Commerce, Meiji University], Yohko Orito [Assistant Senior Professor of Law and Letters,
Ehime University], The right to forget/be forgotten, Crossing Boundaries, 2011.
These arguments concerning the right to be forgotten seem to presume that this right
can be defined and protected within the framework of the traditional conceptualisation
of the right to information privacy. But, the validity of this presumption is doubtful.
Westin (1967) proposed the concept of the right focused on individuals controllability
over the circulation of his/her personal information in a technological environment where
large firms and governments collected, stored and used personal information mainly
within the organisations and thus the circulation was limited compared to the present
day. However, due to the rapid advancement of ICT and the spread of it throughout
society, the Westinian definition of the right to information privacy has already been
outdated.
Privacy is too subjective to conceptualize.
Julie E. Cohen [Professor, Georgetown University Law Center], What Privacy is For,
Harvard Law Review Vol. 126: 1994.
As this brief summary of the debate about privacy and autonomy suggests, efforts to
theorize privacy also have been hampered by the methodological commitments of liberal
political theory, which prize most highly those definitions of rights that are susceptible to
formal, quasi-scientific derivation from core principles. Most privacy theorists have tended
to think that the key to defining privacy lies in locating privacys essence in one or another
overarching principle (such as lib- erty, inaccessibility, or control) and then offering finely
parsed resolu- tions of the resulting conflicts between the principles and ordinary, everyday
134
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practices and expectations.8 Definitions of privacy grounded in core principles, however,
inevitably prove both over- and underin- clusive when measured against the types of
privacy expectations that real people have.9 For example, such definitions cant explain
the widespread belief that sharing personal details with ones friends or ones airplane
seatmate does not automatically equal sharing them with ones employer. In the real
world, privacy expectations and be- haviors are unruly and heterogeneous, persistently
defying efforts to reduce them to neat conceptual schema.
135
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Privacy in the Age of Big Data: A Time for Big Decisions, Stanford Law Review Vol.
64, February 2, 2012.
Privacy and data protection laws are premised on individual control over information
and on principles such as data minimization and purpose limitation. Yet it is not clear
that minimizing information collection is always a practical approach to privacy in the
age of big data. The principles of privacy and data protection must be balanced against
additional societal values such as public health, national security and law enforcement,
environmental protection, and economic efficiency. A coherent framework would be based
on a risk matrix, taking into account the value of different uses of data against the
potential risks to individual autonomy and privacy. Where the benefits of prospective
data use clearly outweigh privacy risks, the legitimacy of processing should be assumed
even if individuals decline to consent. For example, web analyticsthe measurement,
collection, analysis, and reporting of internet data for purposes of understanding and
optimizing web usagecreates rich value by ensuring that products and services can
be improved to better serve consumers. Privacy risks are minimal, since analytics, if
properly implemented, deals with statistical data, typically in de-identified form. Yet
requiring online users to opt into analytics would no doubt severely curtail its application
and use.
136
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not, and therefore need a search engine. Some cannot access information, while many
others can.
Nothing can truly be deleted from the Internetthe right to be forgotten
just makes information asymmetries worse.
Eduardo Bertoni, [Global Clinical Professor at New York University School of Law and Director of the Center for Studies on Freedom of Expression at University of Palermo School
of Law in Argentina], The Right to Be Forgotten: An Insult to Latin American History,
Huffington Post, 9/24/2014, http://www.huffingtonpost.com/eduardo-bertoni/the-rightto-be-forgotten_b_5870664.html.
Third problem: there persists the somewhat magical notion that once right to be
forgotten laws are on the books, information will disappear from the Internet. Bad news:
in the digital age, nothing or nearly nothing disappears. In reality, if a site is not
indexed for a search conducted from a computer in the EU, which is what the ruling orders,
there is a fundamental asymmetry in information between someone sitting in Madrid
searching for a certain piece of information and, say, someone in Bogota administering
the same search. This asymmetry generates an unacceptable disparity between this
planets inhabitants. Information asymmetries, inequality and private censorship are the
common denominators of Europes ruling and of the proposals cropping up from other
continents. But if these problems are so easy to detect, why are we even discussing the
right to be forgotten? Perhaps we find the answer in what Peter Fleishcher, a lawyer
specializing in privacy and advisor to Google, recently posted in his blog: The Right to
be Forgotten is a very successful political slogan. Like all successful political slogans, it
is like a Rorschach test. People can see in it what they want.
The right to be forgotten doesnt solve the problem at its root and is of
limited effectiveness on its own.
Jef Ausloos, [Interdisciplinary Centre for Law and ICT of the University of Leuven], The
Right to be Forgotten- Worth Remembering? Computer Law & Security Review 2012.
It should be repeated, however, that the right is nothing more than an a posteriori band-aid
solution. The right only comes after the collection and can only prevent further (harmful)
processing and dissemination. To really solve the issue, it is necessary to strike at the root.
Many solutions have been proposed over the years. Worth mentioning in this context
are: awareness-raising, transparency, clearer privacy notices, data-minimisation, stricter
control on the purpose limitation principle, anonymisation, transparency, encryption, etc.
The goal of each of these measures is to prevent (potentially harmful) information to be
shared int he first place. But, in an ever-increasing social Internet, where many features
depend on disclosing personal data, ex post measures are needed as well. Enabling a
more effective control by the individual, the introduction of a (well-defined) right to be
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forgotten, therefore seems appropriate at first sight. Only then will it be possible to take
into account different preferences according to context and time.
6.18 Vagueness
The right to be forgotten is too vague for codificationthere is no
consensus on what it entails, or who has jurisdiction over it.
Steven C. Bennet, [partner at Jones Day and professor of Conflicts of Law at Hofstra Law
School] TheRight to be Forgotten: Reconciling EU and US Perspectives, Berkeley
Journal of International Law Vol. 30, 2012.
Despite the progress to date, and prospects for additional efforts at harmo- nization,
the fact remains that US and EU views of privacy protection (and the right to be
forgotten, in particular) are currently in conflict.87 So long as such conflict exists, a
significant procedural question arises: What is the scope of the jurisdiction of EU
authorities to regulate and adjudicate the activities of actors operating outside the
European Union, where some effects of that activity argu- ably arise within the European
Union?88 In an inter-connected world, such a scenario inevitably arises.89 Effective
enforcement of any right, including the right to be forgotten, depends upon a system of
jurisdiction that permits effec- tive enforcement of that right. However, the problem of
conflicting jurisdictions over Internet activity presents an enormous conundrum,90 which
commentators have long recognized.91
6.19 AT Europe
European data protection laws dont protect individual privacy better than
the U.S.
Lothar Determann, [Berkeley School of Law and hastings College of the Law], Social
Media Privacy: A Dozen Myths and Facts, Stanford Technology Review 7, 2012.
It is hardly a proven fact, however, that European data protection laws protect individual
privacy better than the U.S.27 Due to the historic lack of enforcement of data protection
laws in Europe, there is still a wide gap between assertions by European data protection
authorities and legal commentaries as to what is allowed and forbidden and what
companies and government authorities are actually doing and getting away with. In
many ways, European data protection laws are overbroad, under-enforced, outdated
and awaiting reality checks in courts. Take data security breaches, for example: the
broad, omnibus information requirements under existing European data protection laws
have arguably always required companies to inform data subjects of security breaches,28
however, in practice European companies have rarely disclosed breaches.29 Now, ten
years after California passed the first law specifically requiring data security breach
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notifications, the European Union is working on similar legislation to address the serious
threats to data security that have become acute in the last two decades.30 In general,
the European Union considers its own privacy law regime so deficient and outdated that
it has recently proposed a complete overhaul, specifically referencing a need to update
the rules on personal data in social media.31 Thus, it seems a myth that the European
Union is somehow ahead of the U.S. in terms of social media privacy protections.
European data laws arent taken seriously.
Lothar Determann, [Berkeley School of Law and hastings College of the Law], Social
Media Privacy: A Dozen Myths and Facts, Stanford Technology Review 7, 2012.
With respect to personal data on social media platforms, the current European data
protection regime offers hardly any protection at all given that European data protection
laws exempt data processing by individuals for personal and private household purposes.32
The only aspect of social media privacy protection that is covered by existing omnibus
European data protection laws is data collection by social media companies for their own
purposes, primarily through registration processes and cookies. With respect to data
collection through cookies and other tracking technologies, the general European data
protection laws from the early 1970s would already seem to require Internet companies
to obtain prior, informed, voluntary, specific, express, and written consent, given that
no other exception allowing this practice was provided for in statutes.33 In this respect,
the European omnibus legislation approach could have offered superior protection for
individual data privacy, because the general prohibition of automated data processing
should have captured cookie placement at the outset, without any need for special or
updated legislation, whereas the United States approach would have left consumers
unprotected until threats evolved and the legislature or the courts reacted. But, this
would have been true only if anyone had taken the broad European omnibus laws seriously.
This is not how things played out in practice, though. Companies placed cookies in
the United States and Europe without asking for consent. European data protection
authorities did not enforce their laws and in 2002, the European Union passed special
legislation sanctioning the practice by allowing companies to place cookies unless users
opted out.34 In 2009, the European union made an effort to restore what seems to have
been the law all along since 1970 and required companies to obtain prior opt-in consent
before they placed cookies for marketing purposes.35 Many of the European Economic
Area member states are dragging their feet on the implementation, however, and it
remains to be seen whether the remake will be taken more seriously than the original.
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6.21 AT Self-Definition
Individuals dont have a legal claim to personal data about themselves.
Lothar Determann, [Berkeley School of Law and hastings College of the Law], Social
Media Privacy: A Dozen Myths and Facts, Stanford Technology Review 7, 2012.
Talk about informational self-determination12 and proposals for property law regimes to
protect privacy13 sometimes gives people the idea that they own personal data about
themselves.14 Fact is that no one owns facts. Factual information is largely excluded from
intellectual property law protection: copyright law protects only creative expression, not
factual information.15 Trade secret law protects information that companies keep secret
if such information derives an economic value from being secret.16 Personal information
about you that you or others post on social media platforms, however, is not secret and
thus not subject to trade secret law protection. When social media companies aggregate
information about usage and user preferences, the social media companies can claim
trade secret ownership rights in such aggregate information, but they own such trade
secrets and you do not. Also, databases with content and personal information can be
protected under European database laws17 and U.S. state laws on appropriation,18 but
again, as property of the social media companies and not as your personal property. So,
if anyone owns personal data about you, it is the social media companies, not you.19
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gathering. European data protection laws do not protect you from yourself or your
friends.
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The situation is different in Europe, thanks to a court case that was decided
earlier this year. In 1998, a Spanish newspaper called La Vanguardia published
two small notices stating that certain property owned by a lawyer named Mario
Costeja Gonzlez was going to be auctioned to pay off his debts. Costeja
cleared up the financial difficulties, but the newspaper records continued
to surface whenever anyone Googled his name. In 2010, Costeja went to
Spanish authorities to demand that the newspaper remove the items from
its Web site and that Google remove the links from searches for his name.
The Spanish Data Protection Agency, which is the local representative of
a Continent-wide network of computer-privacy regulators, denied the claim
against La Vanguardia but granted the claim against Google. This spring, the
European Court of Justice, which operates as a kind of Supreme Court for the
twenty-eight members of the European Union, affirmed the Spanish agencys
decisions. La Vanguardia could leave the Costeja items up on its Web site,
but Google was prohibited from linking to them on any searches relating to
Costejas name. The Court went on to say, in a broadly worded directive,
that all individuals in the countries within its jurisdiction had the right to
prohibit Google from linking to items that were inadequate, irrelevant or no
longer relevant, or excessive in relation to the purposes for which they were
processed and in the light of the time that has elapsed.
The way that the right to be forgotten is currently understood could be
problematic.
Toobin, Jefrey. The Solace of Oblivion: In Europe, the right to be forgotten trumps the
Internet, The New Yorker, Annals of Law, 9/29/14, www.newyorker.com/magazine/2014/09/29/solaceoblivion
The consequences of the Courts decision are just beginning to be understood.
Google has fielded about a hundred and twenty thousand requests for deletions
and granted roughly half of them. Other search engines that provide service
in Europe, like Microsofts Bing, have set up similar systems. Public reaction
to the decision, especially in the United States and Great Britain, has been
largely critical. An editorial in the New York Times declared that it could
undermine press freedoms and freedom of speech. The risk, according to
the Times and others, is that aggrieved individuals could use the decision
to hide or suppress information of public importance, including links about
elected officials. A recent report by a committee of the House of Lords
called the decision misguided in principle and unworkable in practice. Jules
Polonetsky, the executive director of the Future of Privacy Forum, a think
tank in Washington, was more vocal. The decision will go down in history
as one of the most significant mistakes that Court has ever made, he said.
It gives very little value to free expression. If a particular Web site is doing
something illegal, that should be stopped, and Google shouldnt link to it.
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But for the Court to outsource to Google complicated case-specific decisions
about whether to publish or suppress something is wrong. Requiring Google
to be a court of philosopher kings shows a real lack of understanding about
how this will play out in reality.
Uncertainty of the future increases the need for privacy rights.
Toobin, Jefrey. The Solace of Oblivion: In Europe, the right to be forgotten trumps the
Internet, The New Yorker, Annals of Law, 9/29/14, www.newyorker.com/magazine/2014/09/29/solaceoblivion
Following the fall of Communism, in 1989, the new democracies rewrote their
laws to put in place rules intended to prevent the recurrence of these kinds of
abuses. In subsequent years, the E.U. has promulgated a detailed series of
laws designed to protect privacy. According to Mayer-Schnberger, There
was a pervasive belief that we cant trust anybodynot the state, not a
companyto keep to its own role and protect the rights of the individual.In
2009, Mayer-Schnberger published a book entitled Delete: The Virtue of
Forgetting in the Digital Age. In it, he asserts that the European postwar,
post-Wall concerns about privacy are even more relevant with the advent of
the Internet. The Stasi kept its records on paper and film in file cabinets; the
material was difficult to locate and retrieve. But digitization and cheap online
storage make it easier to remember than to forget, shifting our behavioral
default, Mayer-Schnberger explained. Storage in the Cloud has made
information even more durable and retrievable. Mayer-Schnberger said that
Google, whose market share for Internet searches in Europe is around ninety
per cent, does not make sinister use of the information at its disposal. But
in Delete he describes how, in the nineteen-thirties, the Dutch government
maintained a comprehensive population registry, which included the name,
address, and religion of every citizen. At the time, he writes, the registry
was hailed as facilitating government administration and improving welfare
planning. But when the Nazis invaded Holland they used the registry to track
down Jews and Gypsies. We may feel safe living in democratic republics,
but so did the Dutch, he said. We do not know what the future holds in
store for us, and whether future governments will honor the trust we put in
them to protect information privacy rights.
The lack of a right to be forgotten further exacerbates the plight of
criminals in America.
Toobin, Jefrey. The Solace of Oblivion: In Europe, the right to be forgotten trumps the
Internet, The New Yorker, Annals of Law, 9/29/14, www.newyorker.com/magazine/2014/09/29/solaceoblivion
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Convicted criminals who want to escape the taint of their records are also out
of luck when it comes to petitioning Google. Somewhere between sixty and a
hundred million people in the United States have criminal records, and thats
just counting actual convictions, Sharon Dietrich, the litigation director of
Community Legal Services, in Philadelphia, told me. The consequences of
having a criminal record are onerous and getting worse all the time, because
of the Web. Dietrich and others have joined in what has become known as
the expungement movement, which calls for many criminal convictions to be
sealed or set aside after a given period of time. Around thirty states currently
allow some version of expungement. Dietrich and her allies have focussed
on trying to cleanse records from the databases maintained by commercial
background-check companies. But Google would remain a problem even if the
law were changed. Back in the day, criminal records kind of faded away over
time, Dietrich said. They existed, but you couldnt find them. Nothing
fades away anymore. I have a client who says he has a harder time finding a
job now than he did when he got out of jail, thirty years ago.
Search engines (like Google) are not in the altruism game theyre in the
money making game.
Toobin, Jefrey. The Solace of Oblivion: In Europe, the right to be forgotten trumps the
Internet, The New Yorker, Annals of Law, 9/29/14, www.newyorker.com/magazine/2014/09/29/solaceoblivion
Yet the notion of Google as a passive intermediary in the modern information
economy is dubious. The card catalogue metaphor is wildly misleading,
Marc Rotenberg, the president of the Electronic Privacy Information Center,
in Washington, D.C., told me. Google is no longer the card catalogue. It
is the libraryand its the bookstore and the newsstand. They have all
collapsed into Googles realm. Many supporters of the Courts decision see it,
at least in part, as a vehicle for addressing Googles enormous power. I think
it was a great decision, a forward-looking decision, which actually strengthens
press freedoms, Rotenberg said. The Court said to Google, If you are
going to be in this business of search, you are going to take on some privacy
obligations. It didnt say that to journalistic institutions. These journalistic
institutions have their own Web sites and seek out their own readers. Google
doesnt publish its own material, but the Court decision recognized that the
results of a Google search often matter more than the information on any
individual Web site. The private sector made this discovery several years ago.
Michael Fertik, the founder of Reputation.com, also supports the existence
of a right to be forgotten that is enforceable against Google. This is not
about free speech; its about privacy and dignity, he told me. For the first
time, dignity will get the same treatment in law as copyright and trademark
do in America. If Sony or Disney wants fifty thousand videos removed from
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YouTube, Google removes them with no questions asked. If your daughter is
caught kissing someone on a cell-phone home video, you have no option of
getting it down. Thats wrong. The priorities are backward.
An explanation of the process of being forgotten.
Toobin, Jefrey. The Solace of Oblivion: In Europe, the right to be forgotten trumps the
Internet, The New Yorker, Annals of Law, 9/29/14, www.newyorker.com/magazine/2014/09/29/solaceoblivion
To see how Googles system for complying with the Courts decision worked,
I spoke with David Price, a thirty-three-year-old lawyer for the company, in
a conference room at Google headquarters. Price wore the unofficial uniform
of the Googleplex: bluejeans, an untucked button-down shirt, and a cheerful
demeanor. After the decision, we all made frowny faces, but then we got
down to work, he said. The job had two parts. The first was technicalthat
is, creating a software infrastructure so that links could be removed. This
was not especially difficult, since Google could apply the system already in
place for copyrighted and trademarked works. Similarly, Google had already
blocked links that might have led to certain dangerous or unlawful activity,
like malware or child pornography. The second issue was bigger, Price
explained. We had to create an administrative system to intake the requests
and then act on them. The company designed a form that was accessible
through the search pages for the countries covered by the decision. The
form is now available in twenty-five languages. German users can find it at
Google.de, Spanish users at Google.es. (It cannot be accessed directly through
Google.com, the search page in the United States.) To file a claim, individuals
are required to give their nameanonymous requests are not allowedand
provide the links to which they object. (Most applicants have submitted about
four links each.) Petitioners are also required to provide an explanation of
why the inclusion of that result in search results is irrelevant, outdated, or
otherwise objectionable, according to the request instructions posted online.
If it grants a request, Google then sends a notice to the Webmaster for the
site hosting the links in question. This allows the publishers of that site to
make their case for keeping the link as a search result.
The right to be forgotten can and has been used to wrongly censor.
Toobin, Jefrey. The Solace of Oblivion: In Europe, the right to be forgotten trumps the
Internet, The New Yorker, Annals of Law, 9/29/14, www.newyorker.com/magazine/2014/09/29/solaceoblivion
There have been controversies. Earlier this summer, the BBC received a
notice that Google was deleting links to a blog post about Stanley ONeal, the
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former chief executive of Merrill Lynch. Robert Peston, the BBCs economics
editor and the author of the post, wrote an indignant response, titled Why
Has Google Cast Me Into Oblivion? The de-linking, Peston wrote, confirms
the fears of many in the industry that the right to be forgotten will be
abused to curb freedom of expression and to suppress legitimate journalism
that is in the public interest. How could a public figure like ONeal succeed
in sanitizing the links about him? When Peston looked into the decision more
closely, he found that the request for the deletion appeared not to have come
from ONeal. Rather, it was almost certain that the deletion came from a
request made by one of the commenters on his original piecepresumably,
the commenter wanted his own comment forgotten. Googling Stan ONeal
still drew a link to Pestons blog post, but Googling the commenters name
did not. In any event, the contretemps illustrated the complexity of Googles
task in complying with the Courts judgment. Were a work in progress,
Price told me.
A right to be forgotten is functionally useless unless it is globally
recognized.
Toobin, Jefrey. The Solace of Oblivion: In Europe, the right to be forgotten trumps the
Internet, The New Yorker, Annals of Law, 9/29/14, www.newyorker.com/magazine/2014/09/29/solaceoblivion
Victor Mayer-Schnberger believes that the European Court has taken an
important first step. Its a pragmatic solution, he said. The underlying
data are not deleted, but the Court has created, in effect, a speed bump. In
Germany, he explained, if you quickly search on Google.de, youll not find
the links that have been removed. But if you spend the extra ten seconds to
go to Google.com you find them. You are not finding them accidentally, and
thats as it should be. This speed-bump approach gives people a chance to
grow and get beyond these incidents in their pasts.
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search made on the basis of a persons name links to web pages, published by
third parties and containing information relating to that person. The Court
thereby affirmed what many are referring to as the right to be forgotten. In
reality, its very important to understand that all the ruling establishes is the
right to not be indexed by a search engine. In other words, the information
intended to be forgotten is not erased, but rather remains on the site where
it is. The only obligation search engines have is that we not be directed to
that site. Therein lies the first problem for those supporting a right to be
forgotten, which, in reality, does not forget anything. It only exacerbates the
existing differences between those who know where to find the information
and look for it directly, and those who do not, and therefore need a search
engine. Some cannot access information, while many others can.
The right to be forgotten puts the power/responsibility in the hands of
private companies, not governments.
Bertoni, Eduardo. The Right to Be Forgotten: An Insult to Latin American History,
Huff Post Tech, The Blog, 9/24/14, www.huffingtonpost.com/eduardo-bertoni/the-rightto-be-forgotten_b_5870664.html
The second problem is equally grave: the Court of Justice leaves it to private
companies that manage the search engines to decide what we are able to
encounter in the digital world. Unfortunately, Google the primary target of
the ruling has decided to accept the enormous responsibility of serving as a
mechanism for censorship. In fact, news media outlets, including the BBC
and the Guardian, have already begun to protest Googles removal of several
of their stories in compliance with the right to be forgotten laws.
The right to be forgotten doesnt actually remove any information.
Bertoni, Eduardo. The Right to Be Forgotten: An Insult to Latin American History,
Huff Post Tech, The Blog, 9/24/14, www.huffingtonpost.com/eduardo-bertoni/the-rightto-be-forgotten_b_5870664.html
Third problem: there persists the somewhat magical notion that once right
to be forgotten laws are on the books, information will disappear from
the Internet. Bad news: in the digital age, nothing or nearly nothing
disappears. In reality, if a site is not indexed for a search conducted from a
computer in the EU, which is what the ruling orders, there is a fundamental
asymmetry in information between someone sitting in Madrid searching for a
certain piece of information and, say, someone in Bogota administering the
same search. This asymmetry generates an unacceptable disparity between
this planets inhabitants.
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Most requests to be forgotten are rejected.
Mirani, Leo. What Google is telling people who want to be forgotten, Quartz, 9/24/14,
qz.com/270954/what-google-is-telling-people-who-want-to-be-forgotten/
While there is plenty of spin from both sides, facts on the ground remain
scarce. In July, Google told the European Commissions Article 29 Working
Party, a body of data protection commissioners, that it had received over
91,000 requests for some 328,000 links to be taken down because of obsolete
information since the ruling went into effect in May. More recently, the New
Yorker reported that the number of requests had climbed to 120,000, at an
average of four links per request. That suggests the flood is turning into
a trickle: Google got 10% of those on the first day of launching its online
request form. How is Google dealing with those requests? Forget.me, a service
from the people at Reputation VIP, has some answers. Forget.me has so far
requested the removal of 15,000 links from people in 30 countries. Thats 4.5%
of the total number of links Google is being asked to removea respectable
sample size. Here are trends that have emerged from Forget.mes requests:
Of the 15,061 links submitted, Forget.me has so far received a response for
7,085 of them, or just under half. Google rejected the majority of those.
The real issues with digital privacy may be masked with the right to be
forgotten.
Ausloos, Jef. The Right to be Forgotten Worth Remembering?, Computer Law & Security Review, 11/30/11, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1970392
Just like the binary consent-framework in most privacy-regulations nowadays45, the right to be forgotten, arguably, is insufficient to deal with privacy
issues on the Net. If a person does not agree with a privacy policy, he/she
simply can not use the product or service.46 Introducing a right to be forgotten only postpones this illusion of choice. Additionally it burdens the
individual even more and offers a wild card for more privacy-intrusive uses.
The individual will often be frustrated by defences like the subject had the
right to delete.
The root of the problem isnt addressed by the right to be forgotten.
Ausloos, Jef. The Right to be Forgotten Worth Remembering?, Computer Law & Security Review, 11/30/11, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1970392
It should be repeated however, that the right is nothing more than an a
posteriori band-aid solution. The right only comes after the collection and
can only prevent further (harmful) processing and dissemination. To really
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solve the issue, it is necessary to strike at the root. Many solutions have been
proposed over the years. Worth mentioning in this context are: awarenessraising48, transparency, clearer privacy notices49, data-minimisation, stricter
control on the purpose limitation principle, anonymisation50, transparency,
encryption, etc. The goal of each of these measures is to prevent (potentially
harmful) information to be shared in the first place. But, in an ever- increasing
social Internet, where many features depend on disclosing personal data51,
ex post measures are needed as well. Enabling a more effective control by
the individual, the introduction of a (well-defined) right to be forgotten,
therefore, seems appropriate at first sight.52 Only then will it be possible to
take into account different preferences according to context and time.
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I believe the RTBF is troublesome from the point of view of public debate.
Who is going to decide what has to stay and what needs to go? Thats the
basic question that is going to be I think shaped by lots of litigation
everywhere, where old freedom of expression principles will come into play,
specially on the issue of public interest, public officials, and so on. The
not-so-clear cases will be tougher though and Im sure many legal battles
are to come in the future. The decision does not provide clear categorical
definitions on when the RTBF does and does not apply. So public officials
may or may be not capable of making claims under the RTBF. I can think
of cases where such claims could be successful, e.g., if a low-ranking public
official wants to remove embarrassing information that has nothing to do
with his office versus cases where those claims would not be successful. Or
if a candidate running for election wanted to eliminate information on past
wrong-doings. However, these cases themselves are not that clear and their
resolution depends on the way local freedom of expression criteria plays out
when applied to this new right. Its kind of unpredictable the actual
outcomes remain to be seen.
Using the actual malice doctrine to balance free flow of information and
individual rights.
Ugarte, Ramiro.
Right to Be Forgotten: A Win for Argentinas LawsuitHappy Celebrities?, Advocacy (A project of Global Voices Online), 9/18/14,
advocacy.globalvoicesonline.org/2014/09/18/right-to-be-forgotten-a-win-for-argentinaslawsuit-happy-celebrities/
It is difficult, but not impossible. I think the guiding principle should be
freedom of expression case-law. In the US the actual malice test involves
public officials or private individuals who have voluntarily joined public debate.
This is a proxy for dealing with public interest cases without getting into the
thicket of producing a definition of what public interest is. The actual malice
doctrine is a test applied by the US Supreme Court on freedom of speech
cases which involve public officials or private individuals who have willingly
entered public debate. It basically says that a journalist or a media outlet
should not be liable for false information unless they published knowing that
the information was false or with reckless disregard of whether it was false or
not. It comes from New York Times v. Sullivan in 1964 and has been, since
then, shaped by other decisions. This public official requirement is, however,
a proxy for covering public interest cases. But because public interest is not a
concept which is easy to define, US courts have traditionally used the category
of public official to define public interest cases: Whether a public official is
involved in the news-story or not is a much easier question to answer than
whether the news itself is of public interest. Latin American courts have not
followed this approach and have taken the actual malice test in its raw form:
151
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6 Neg Evidence
It applies to public interest cases, and the definition of what is and what is
not of public interest is decided on a case-by-case basis. The RTBF cases
must be decided on a public interest test as well: If the information is in the
public interest, it should remain public. If it is not, the RTBF may apply.
However, the actual malice test only applies to information that is false, when
the RTBF applies only to information that is true. What I am thinking is that
one possible way of dealing with this is to extend the actual malice doctrine
and criteria to cases where the information is true, not for liability but for the
elimination of said information from relevant records. This step can be taken,
but it would restrict the deliberative sphere freedom of expression wants to
protect. But I believe this is an unavoidable consequence of the RTBF as
crafted by the European court so far.
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6 Neg Evidence
153
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6 Neg Evidence
Narrowing the right to be forgotten.
Rosen, Jeffrey. THE RIGHT TO BE FORGOTTEN, 64 Stan. L. Rev. Online 88,
Symposium Issue, 2/13/12
In endorsing the new right, Reding downplayed its effect on free speech.
It is clear that the right to be forgotten cannot amount to a right of the
total erasure of history, she said.3 And relying on Redings speeches, press
ac- counts of the newly proposed right to be forgotten have been similarly
reassuring about its effect on free speech. In a post at the Atlantic.com, Why
Journalists Shouldnt Fear Europes Right to be Forgotten, John Hendel
writes that although the original proposals a year ago would have potentially
given people the ability to cull any digital referencefrom the public record,
journalism, or social networksthey deemed irrelevant and unflattering,
Reding had proposed a narrower definition of data that people have the
right to remove: namely personal data [people] have given out themselves.4
According to Hendel [t]his provision is key. The overhaul insists that Internet
users control the data they put online, not the references in media or anywhere
else.
The harsh penalties for failure to comply with the right to be forgotten
will cause data controllers to error on the side censorship, which is bad for
freedom of expression.
Rosen, Jeffrey. THE RIGHT TO BE FORGOTTEN, 64 Stan. L. Rev. Online 88,
Symposium Issue, 2/13/12
According to the proposed European Right to Forget, the default answer is
almost certainly yes. According to the regulation, when someone demands the
erasure of personal data, an Internet Service Provider shall carry out the erasure without delay, unless the retention of the data is necessary for exercising the right of freedom of expression, as defined by member states in their
local laws.8 In another section, the regulation creates an exemption from the
duty to remove data for the processing of personal data solely for journalistic
purposes, or for the purposes of artistic or literary expression.9 Essentially,
this puts the burden on Facebook to prove to a European commission authority that my friends publication of my embarrassing picture is a legitimate
journalistic (or literary or artistic) exercise. If I contact Facebook, where I
originally posted the embarrassing picture, it must take all reasonable steps
on its own to identify any relevant third parties and secure the takedown of
the content.10 At the very least, Facebook will have to engage in the kinds
of difficult line- drawing exercises previously performed by courts. And the
prospect of ruinous monetary sanctions for any data controller that does not
comply with the right to be forgotten or to erasurea fine up to 1,000,000
154
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6 Neg Evidence
euros or up to two percent of Facebooks annual worldwide income11could
lead data controllers to opt for deletion in ambiguous cases, producing a
serious chilling effect.
A right to be forgotten could turn the Internet into a censorship hot
zone rather than a forum for the free exchange of ideas.
Rosen, Jeffrey. THE RIGHT TO BE FORGOTTEN, 64 Stan. L. Rev. Online 88,
Symposium Issue, 2/13/12
The proposed European regulation, however, treats takedown requests for
truthful information posted by others identically to takedown requests for
photos Ive posted myself that have then been copied by others: both are
included in the definition of personal data as any information relating to
me, regardless of its source.15 I can demand takedown and the burden, once
again, is on the third party to prove that it falls within the exception for
journalistic, artistic, or literary exception. This could transform Google, for
example, into a censor- in-chief for the European Union, rather than a neutral
platform. And because this is a role Google wont want to play, it may instead
produce blank pages whenever a European user types in the name of someone
who has objected to a nasty blog post or status update.
155
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6 Neg Evidence
There are limits to a right to be forgotten.
Weber, Rolf. The Right to Be Forgotten: More Than a Pandoras Box?, jipitec, vol 2,
2011, https://www.jipitec.eu/issues/jipitec-2-2-2011/3084
Privacy or a right to keep personal information confidential can be in conflict
with other rights, such as free speech, and other privileges related to the
free use of the web. Obviously, as already outlined, there is a court practice
that balances the interests of privacy advocates against the freedom-of-speech
de- fenders, and trade-offs are also needed in the real world.33 Nevertheless,
in the context of Internet communications, legal doctrine clearly refers to
the fact that protection of the right to privacy is so difficult since it would
mean a right to have the government stop you from speaking about me.34
Furthermore, this traditional concept is increasingly confronted with the
fact that social networks such as Facebook are assuming an informationtransporting function that might extend the implied consent of the person
concerned (like Stacy Snyder) to upload a photo. In addition, the question
remains whether the right to be forgotten is actually a privacy right since
privacy concerns information that is not publicly known. In contrast, the right
to be forgotten would turn public information into private information at a
certain time by no longer allowing third persons to access such information.
Technological advances restrict the possibilities of the the right to be
forgotten.
Weber, Rolf. The Right to Be Forgotten: More Than a Pandoras Box?, jipitec, vol 2,
2011, https://www.jipitec.eu/issues/jipitec-2-2-2011/3084
A further (practical) obstacle consists in the fact that Internet users consider
censorship damaging and go to lengths to circumvent it. As recent experiences
with the attempt of many governments to block access to the Internet have
shown,36 interested persons generally find a way to communicate electronically.
With improved technology, it is becoming increasingly difficult for governments
and private persons to contain certain information.
There are cultural limitations to the right to be forgotten.
Weber, Rolf. The Right to Be Forgotten: More Than a Pandoras Box?, jipitec, vol 2,
2011, https://www.jipitec.eu/issues/jipitec-2-2-2011/3084
Finally, a cultural aspect must be taken into account: The question needs
to be raised to what extent society has changed, as assumed for example
by Mark Zuckerberg of Facebook.37 Many people seem happy to make the
trade-off in favor of sharing more about themselves in exchange for services
156
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6 Neg Evidence
and convenience (or they are at least not aware of the consequences of their
behavior).38 The enforcement problem is also confronted with the (legal)
question whether the government should punish those who use information
that someone has voluntarily published on the Internet; legally, the timeoriented range of a given consent to publish is at stake.
157
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