Right to be forgotten: a blunt trauma to free speech and public information, or a significant win for privacy and human dignity?
This question has been around ever since the EU determined the “right to be forgotten” a fundamental right for its citizens in 2014.
Also described as the right to be delisted or right to erasure, this right “involves an entitlement or right to request that search engines remove links to private information taking into account the right to privacy weighed against public interest considerations.”
In this post, we’ll look closely at the right to be forgotten policy and the questions surrounding it. So, let’s begin.
What is the Right to be Forgotten?
In today’s digital landscape, an unprecedented amount of data is on public display. Many seek internet privacy, but only a few achieve it.
But 2014 marked the year when the European Union added Article 17 to the General Data Protection Regulation (GDPR). This gave EU citizens the right to request their personal data to be delisted from search engines.
It says, “individuals may request data to be removed if it is no longer relevant or necessary, or if it falls into another category specified by law.”
It’s been well established that, if left unremedied, some published private information can have damaging effects on its subjects. And while the United States hasn’t adopted this law yet, it’s still an important element in the global internet debate.
The GDPR defines this law as “the right of an individual to have their personal data erased by a data controller (website administrator or owner).”
Anyone living in an EU member state can invoke the right. And any business or organization that conducts business in the EU has to follow this law. This applies even if they’re not located in one of the EU states.
Doesn’t This Right Violate Freedom of Speech?
Now, this is where things get a bit complicated.
“This case could see the right to be forgotten threatening global free speech. European data regulators should not be allowed to decide what internet users around the world find when they use a search engine, says Thomas Hughes, the executive director of Article 19. “The [court] must limit the scope of the right to be forgotten in order to protect the right of internet users around the world to access information online.”
So, since it’s now a RIGHT to be forgotten, does that mean ANYONE can ask search engines to remove anything?
For example, can criminals make their public records unsearchable, public figures who have said or done bad things get a clean sheet, and corporations hide details of their wrongdoings?
Well, that’s not how it works. Every delist request goes through a comprehensive analysis before it’s granted.
Let’s have a look at what goes into Google’s decision-making when considering a right to be forgotten request.
And make no mistake, this applies to all search engines and certain directories within the EU. As well as such companies doing business in EU member states. But since Google is possibly the most important search engine, we’ll have a look at their process.
What Is Google’s Decision Process?
If you want to read Google’s decision process in its entirety, visit their “Right to be Forgotten Overview” page. This is just a summary of what’s written there.
Once you submit a request, Google’s professional reviewers will review it manually to decide whether the information you request to be removed is in the public interest. They’ll then weigh it against your rights under the applicable law.
But what are the factors that determine whether something is in the public interest?
Your Role in Public Life
First, they’ll examine whether you’re a public figure influencing a larger audience. Public figures might be:
- Politicians
- Celebrities
- Business or religious leaders
- Or anyone who holds a certain social position because of their job.
After this, they’ll examine whether or not the information you’re requesting to be removed relates to your public role.
The less the information relates to your job, the more likely the information is to be delisted.
For instance, say that you’re a politician and there’s certain information about your private life that doesn’t concern your job. If you want it to be removed from Google search, there’s a higher chance that the information will be delisted.
On the other hand, if the content contains criticism about your performance in your role as a politician, there is little to no chance that it will be delisted.
Where The Information Comes From
The second thing Google will check is if the information is on a government site. If the government has published it and made it available for search engines to locate the information, Google can deny your delist request.
“Government records play a vital role in keeping society informed of matters of public interest, and the government’s decision to keep publishing it is a strong indication that it considers the public interest to still exist.”
Besides that, if the information is on a news site, written as a part of journalistic activity, it’s less likely for Google to remove it.
How Old the Content Is
The age of the content also matters a lot to Google when reviewing a right to be forgotten request. They check if the information contained in the search result is still relevant.
If the content is up-to-date, and nothing has happened to contradict its materials, then it may not get delisted.
The Effect on Google’s Users
Apart from the content’s age, Google will also look for whether its users have an important interest in finding out the information that you’re requesting to be removed. Online reviews are a great example of this.
If you run a professional service, past client reviews can help future clients learn more about your business.
Besides that, information related to criminal convictions also has little to no chance of delisting.
Google says, “We consider whether it is strictly necessary to continue to display the information in order to protect the freedom of information of our users, including to protect themselves from the possibility of similar future crimes by obtaining that information.”
Of course, the validity and the age of content from the above section still apply.
This means that if an individual was not found guilty of the alleged crime, and the website still portrays them in a way that harms their reputation, Google can delist the information.
Truth Or Falsehood
When making a request, you also need to provide sufficient reliable evidence in your favor for Google to grant your request.
How to Get Information Delisted on Google?
To begin with, visit Google’s “Personal Information Removal Request Form.”
Once you’re there, you’ll have to provide these things:
- The specific URL(s) for the information that you want delisted.
- A detailed description of how the content relates to you and why Google should delist it from their search results.
- A search query or queries which you want Google to delist. This can be, for example, your full name or nickname. (You may need to provide evidence that it’s linked to you).
- An email address where you can be reached.
Besides these, it can also be helpful if you can provide as much background information as necessary to enable Google to effectively evaluate your request and consider it.
They’ll also reach out to you via email if they need more information. In this case, they will halt further proceedings until they hear from you. They’ll only resume further checks when you provide the requested information.
Nuances That Go into Filing a Right to be Forgotten Application
Filing a right to be forgotten request may seem quite simple at first glance. But there are many nuances surrounding such requests.
As Intellectual Property expert Elizabeth Ward mentioned on The Healthier Tech Podcast:
“It is designed for people to make their own applications. I think the difficulty is doing it without guidance.
If you decide to file it without a lawyer looking at it, you’d then have to then work out exactly how your case fits into the legislation. And that may be difficult for a lot of people.”
And when asked if people could file it anyway, she responded:
“Yes, they [the public] can do it. Google and all these other platforms enable you to file it yourself. And you’ve to file your photo identification to show that you are who you purport to be. But as I say, sometimes there are subtle nuances.” These, says Ward, can complicate the application process.
Will The Right to Be Forgotten Ever Make It to the US?
Since we in the United States give significant importance to our First Amendment freedoms, it seems unlikely that a court would ever recognize this right, say experts.
In 2017, a similar bill was introduced in the state of New York that would require the removal of “inaccurate” or “irrelevant” statements — among other categories — from the Internet. But that bill didn’t gain much traction.
But should the US adopt and legislate this nationwide? I think yes. That’s because many people who are especially vulnerable to internet exploitation, like people with arrest records and victims of revenge pornography, can massively benefit from this.
As the bar for defamation is really high in the US, such individuals don’t have an easy alternative to request the removal of their personal data from search engines.
“The overwhelming policy argument in favor of this right is that it would allow individuals greater privacy over elements of their lives that most would not want subjected to public scrutiny,” says Danielle Bernstein, Associate Editor of the Michigan Technology Law Review.
But I don’t pretend that such an effort would be easy or clean-cut.
Trying to get complete internet privacy is like trying to put squeezed toothpaste back inside the tube, says Elizabeth Ward. It’s virtually impossible and requires a ton of effort.
Final Thoughts
Even though the primary motivation behind the right to be forgotten law is to enhance privacy for the general public, it still requires a lot of optimizations. Right now, the only way to ensure your privacy remains uninvaded is to be mindful of your online activities and use tools designed to enhance your privacy.
Learn more about internet privacy and the best privacy practices in my post, “Internet Privacy, Or Lack Thereof, Has a Huge Impact on Your Mental Health—Experts Say.”
Besides that, I’d also recommend giving Season 2, Episode 6 of The Healthier Tech Podcast a listen. In this episode, Elizabeth Ward shares her expertise on the right to be forgotten. As well as, Amy Christophers shares her personal experience with this law.
And don’t forget to subscribe to the Healthier Tech Podcast on [Apple], [Spotify] or your preferred podcast platform.
