Out-Law Analysis 5 min. read
12 Nov 2010, 11:37 am
While it might seem like a good idea to give people the right to force organisations to delete their personal data, legislators should stop and think very carefully about the implications of such a rule for free speech, other people's rights and the nature of recorded fact.
The Commission is reviewing data protection legislation in a welcome update to 15-year-old laws. It plans to put forward new legislation in 2011, according to last week's 20-page paper (106KB PDF).
A Commission FAQ about the process said that individuals should have more control over their own data. "They need to know what their rights are if they want to access, rectify or delete their data," it said.
"For example, there should be a 'right to be forgotten,' which means that individuals should have the right to have their data fully removed when it is no longer needed for the purposes for which it was collected," said the FAQ. "People who want to delete profiles on social networking sites should be able to rely on the service provider to remove personal data, such as photos, completely."
You might think that you should have the right to erase that photo of yourself in that Barney Rubble costume from Facebook forever. And you might be right. But what about the right of your proud friend in the Wilma costume to have his picture displayed?
If a student who marched in London this week to protest against the raise in university tuition fees decides that they do not want to appear in photographs of it, can they insist that their face be blurred in pictures on Facebook? What about in newspapers?
There are two kinds of rights at stake here. One is the right of other individuals to have material continue to exist. If you want something deleted – a picture, an account of an event – that includes other people in any way, you are dealing with conflicting rights. Whose should win out?
The other kind of right is that of society to know what has happened. There was a protest march this week and thousands of students participated. This is important, it is part of the fabric of the nation's life. If all of those people were able to delete themselves from records of that event then how can we know in the future that it happened?
Society must have a right to record history, and history is made up of material depicting or describing individuals. Its distortion is nothing new: as Winston Churchill observed, history is written by the victors. But the information age should make it harder to lose objective records. Politicians should be careful if they pass laws that might undermine that.
Not all 'right to be forgotten' laws need to go that far, though, and some already exist.
At the restrictive end of the spectrum are laws in Germany and Switzerland. The German law was used to obtain a ruling from a German court to erase the name of a convicted killer from Wikipedia. Unsurprisingly, free speech advocates cried foul.
The Swiss law was used successfully in a claim against Journal de Genève after the Swiss newspaper reported that the subject of a current story had a past conviction for bank robbery. Even if informing the public of a criminal's past was newsworthy, the court said, naming him was not, and it interfered with the rehabilitation of convicts. (I recommend reading Professor Franz Werro's comparison of Switzerland's right to be forgotten and America's right to inform.)
The Swiss model suggests a right to be forgotten, or a right to delete, can go beyond the protection of privacy, though that rather depends on how you define privacy. The right can be used to censor information that was lawfully made public and, in effect, change someone's record in history.
In France, there has been growing support for the right to delete. In 2009, the French Secretary of State in charge of the digital economy began a campaign on the right to be forgotten. So far it has led to a Code of Practice (11-page / 1MB PDF) that takes a small step towards the right.
Signed in September 2010 by Microsoft France and others, that Code stops far short of the revisionism that laws in Germany and Switzerland appear to facilitate. According to an automated translation, it talks about giving users of websites information on the 'shelf life' of personal data.
Users also get tools to locate and remove information they communicated or published, though it is unclear how far that right might go. Would you get to delete all records of online conversations in which you participated, or only your contributions to those conversations?
The French Code also provides that users need to be told about the ability of search engines to index their data. Microsoft, the only search engine signatory, appears to commit to working with publishers to facilitate the removal of certain content from its index; and to update its cache when a modification is made or information 'de-indexed'.
In the UK, we do not have a right to delete information, though we do have a right to access personal information held by others and we can insist that mistakes are rectified. We have famously draconian libel laws that have been used to censor online news archives, including our own, but we also have a relatively strong right to freedom of expression, even though it is weaker than the Constitutional right of free speech in the US.
Do we need new legislation at all? Europe recognises a human right to free expression and a human right to a private life. These rights carry equal weight and we task our courts with their application to a given set of circumstances. Are they failing in that duty?
There are technical problems with the right to disappear too. With ever-increasing amounts of digital information about all of us in ever-increasing numbers of places, how can you be sure that all information has been deleted?
What is deletion, anyway? Must it be irretrievable? Can you have every bit of data that might identify you erased, down to the removal of an IP address and timestamp in server logs? Can you demand that even your request for deletion gets deleted?
Will deletion be distinguished from suppression? For example, if you tell a company to never email you again and to remove your address from its databases right away, your request presents a challenge. How can a company ensure that it avoids future mailings to you without keeping a note of your address? Its solution might be to add your address to a suppression list – a 'do not call' list exclusive to that business.
Then there are problems with how you verify the identity of the person requesting deletion. Surely someone will use it maliciously, to erase someone else from the web?
Another difficulty is whether the right can be waived. Chris Conley of the American Civil Liberties Union, in a paper that argues for a right to delete (6-page / 580KB PDF), observes that if website terms can be used to waive the right with a click, the right "is likely to have no practical effect whatsoever". But if it can't be waived, he acknowledges that the right may hinder beneficial projects that involve long-term collection and use of data.
Clearly, some countries have already managed to balance some of these rights and responsibilities. But the problems are technical, ethical and legal. Most of all they are complex, and EU legislators would be fools to write laws covering such sensitive ground in any kind of a hurry.