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@WAN_Medialex speech in Bogota at Right to be Forgotten seminar

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@WAN_Medialex speech in Bogota at Right to be Forgotten seminar

My fellow panelists dicussing the challenges to freedom of expression represented by the right to be forgotten were Pedro Vaca from FLIP, Fundación para la Libertad de PrensaMaría Paz Canales of Derechos Digitales and Sandra Rodriguez from el Tiempo. Here below my remarks.

When I wrote the article meant to present to the public our report on the Right to be Forgotten in March 2016, I titled it “the myths, the facts and the future”. The reason for this was that I had been reading a lot of misinformed opinions in the press and on the internet on what the CJEU decision known as Costeja vs Google Spain really meant for a free press. My objective with the report was thus to set the record straight, to go back to basics of what the Court really had said, and to hopefully contribute to a better-informed discussion, and a deeper investigation of the next steps. The bottom line was: at that time in my opinion newspapers had less to fear from the Right to be Forgotten than what conventional wisdom suggested.

In these twelve months though the right to be forgotten has evolved considerably, and at the same time my opinion changed.

What was decided by the CJEU in May 2014 was that search engines were to be considered private data controllers. As a consequence, data subjects were entitled to obtain from a search engine, just like they always were with respect to all data controllers under European law, the rectification, erasure or blocking of data the processing of which was against the law. In the case of a search engine the processing would be unlawful if, as exemplified by the CJEU, an Internet research on the basis of a person’s name and surname resulted in the resurfacing of information about that subject that had become, because of the passing of time, inaccurate, inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which the data were processed.

At the beginning I was not too worried for the effects of the decision on newspapers because…

1) The Court stated immediately and in no uncertain terms that the right to be forgotten could not be granted at the expense of newspaper archives.

2) The European Court of Justice provided for a few important safeguards to preserve the integrity of history, including the inapplicability of R2BF to public figures.

3) At that point it was a Court decision, not law. Also, it was coherent with the long-standing European tradition of data protection, rooted in a history of privacy violations by authorities that directly led to horrific consequences. In this context, an excessive territorial extension in countries with different juridical history seemed unlikely.

My main objection to the decision was that any conflict between privacy and freedom of information and of expression is a delicate matter of balancing fundamental rights, and only courts or independent adjudicatory bodies should retain the power to determine that balance. The practical consequence of the Costeja decision was instead that rather than running the risk of facing costly transactions in judicial proceedings, Google decided to take a proactive approach and engage directly in the evaluation of the de-linking requests it received.

Still, far from being an attempt at censorship, the decision had though the merit of sparking a global debate on a subject – privacy –which was generally overlooked as a fundamental human right by a large part of the general public. I always struggled to find any other straightforward positive consequence of the decision, even though it was originally not supposed to be dangerous for freedom of expression.

As I said though, in the last twelve months the right to be forgotten evolved, and things changed.

1) I mentioned that right to be forgotten did not impact in principle newspapers or journalists. The judges actually explained their severity in extending the provision to search engines by noting that the data subject very often would be barred from obtaining satisfaction from news publishers, which under EU law were shielded by a journalistic exemption, which indemnifies them from individual claims based on data protection laws and, in particular, on “right to be forgotten”. In the intention of the judges, shifting the responsibility of rectification onto search engines in the form of de-linking meant that the offending piece of information could simply be made more difficult to reach (but still reachable, with a query different from name + surname of the data subject). At the same time the integrity of history and newspaper archives was ensured by the fact that the de-linked news remained published in its original location on the Internet. The CJEU never intended for link removal requests to be addressed to news media, much less did they imagine that such requests would be granted. 

  • This assumption proved wrong in April 2016, when Belgian newspaper Le Soir was ordered by the country’s Superior Court to alter an article published 22 years before. The judges considered that the publication of the original piece of news in the paper’s online archive represented a new disclosure of facts regarding the individual’s judicial past, which involved drunk driving resulting in the death of two people. The Court was not convinced by the argument of the importance of preserving the integrity of newspaper archives, considering that the original paper archives remained intact. The Belgian Superior Court ordered therefore the anonymisation of the piece of news.

The Board of WAN-IFRA reacted immediately to the news and passed a strong resolution calling on courts of law to uphold freedom of expression in the face of right to be forgotten claims, and unequivocally declaring “unacceptable (...) any imposed alteration of news articles”.

I’d like to pause for a second here and consider with you all what happened in Belgium one year ago, its real meaning. It is not about what the specific case regarded, whether if we were in the shoes of that person who killed two people 22 years ago as a consequence of a tragic accident we ourselves would have liked the possibility to erase the information from the Internet. It really is not. When it comes to Human Rights, any exception is potentially disastrous, and cannot be tolerated. It goes beyond the single person’s interest, because once you accept the sheer concept of an exception to a Human Right, you open the way to the abuse of that exception. And in fact….

  • Then Italy happened, and things got worse. Less than two months after the Belgian decision on the Le Soir case, the Italian Superior Court dealt an even more serious blow to freedom of information in June 2016 in the name of R2BF. While the Belgian case enjoyed at least the extenuating circumstance of dealing with a fact that was 22 years old, the Italian news regarded a matter that is still to this day debated in Court! In a nutshell, a restaurant that was the scene of an episode of violence less than three years before, obtained that the newspaper relating the news be ordered to expunge it from their website. The reason: in the words of the judges the information had been made public for “long enough”. Two years were a stretch of time sufficient to satisfy the right to information of the public, maintaining the article online for longer suddenly constituted a direct violation of the plaintiffs right to privacy, and the publication was not covered (anymore?) by the journalistic exemption.  The Italian judge basically established in two and a half years the time span after which news and all the public’s rights connected to them expire, “just like milk, yogurt or a pint of ice cream”. 

Both the Belgian and the Italian case showed that the concern of the CJEU was not sufficient to preserve the news media from right to be forgotten successful claims. The immediate and troubling consequence is that with such precedents news media are likely to increasingly commit self censorship and volunteer news removals, unless they’re wealthy enough to face long judicial proceeding. 

2) More alarm bells rang observing the immediate success of right to be forgotten: the CJEU decision showed from the very beginning an incredible potential to inspire non-European legislators ad judges. As early as one month after Costeja, its principles were faithfully applied in the decision of the Equustek case in Canada. Judges from all over the world followed: from Japan, to Brazil just to name a few. And in some cases the international copycats were dramatically disrespectful of the safeguards provided for in the original right to be forgotten decision. In July 2015, for example, Russian President Vladimir Putin signed into law a version of the right to be forgotten that is specifically extended to public figures. Very recently an Irish court ordered the removal of information posted on Reddit about a political candidate – hence definitely a public figure - , considering that the person’s privacy overcame the interest of the public in the information.

3) Finally, the GDPR was approved and the right to be forgotten will soon be enshrined in European law. While it is right now the judicial adaptation to Internet search engines of a privacy rule conceived in the 90s for a different world, as from May 2018 it will be provided for in article 17 of the new European Data Protection Regulation, under the name of “right to erasure”, and immediately applicable in all EU Member States. The new rule has a potentially global territorial impact , it provides for fines of up to 4% of the total worldwide annual turnover of an infringer, and declined to spell out the journalistic exemption, leaving to the Member States the balancing between privacy and freedom of expression. 

In conclusion, I still think that the right to be forgotten as it was shaped in 2014 by the European Court of Justice did not per se necessarily represent a threat to freedom of expression. The decision rather brought privacy at the forefront of the discussion on human rights, while providing for safeguards in the performance of a balance with freedom of expression and information. I have also always believed though that the European decision bore a fatal “original sin”, when it allowed for the balancing of human rights to be outsourced from its only acceptable seat, a court of justice, to the legal offices of private companies.

The right to be forgotten within the European privacy regulation represents a concrete risk for freedom of expression, given the weakness of its journalistic exemption, the potentially global reach of its territorial implementation, and the size of the fines it foresees. These rules, in the hands of judges without clear instructions from a higher court, could represent the perfect recipe for self censorship. This could be true both in Europe and globally, given the massive level of inspiration that the European decisions on this topic have represented for countries around the world.

It seems to me that the European Court of Justice, which is at the origins of the global turmoil around the right to be forgotten, has to take responsibility for what the future will look like. Specifically, the Court will soon have to decide on questions raised by the French Conseil d’Etat on the details of the implementation of right to be forgotten. In this context, I believe that the judges need to approach their decision with a full understanding of what it ultimately will likely represent: a global precedent on the balancing of privacy against freedom of expression.




Elena Perotti's picture

Elena Perotti


2017-05-08 22:59

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