In this article, we are going to explore what is the context of “the right to be forgotten” and how it can be related to everyone. We will also discuss the conflict between the right to freedom of expression and the right to respect for private life in the context of anonymisation of digitised information.
Whether the Internet forgets?
The capacity of the human brain and memory have not been fully studied, but we can perhaps claim that the human memory is selective and limited. We are not able to remember everything, and most of the information we get daily becomes a distant memory after some time or is generally pushed back by other more urgent or everyday thoughts.
But now imagine a situation when nothing is forgotten and everything you have ever done is going to follow you all your life, and even the mistakes made and offences committed at a very young age are going to affect your personal life and/or career in the future.
In the modern world especially in the course of digitalisation of media archives, it is already a reality. Once information is posted online, it can be challenging to completely erase or remove it, even if attempts are made to delete or edit content.
When one can exercise “the right to be forgotten” and is it absolute?
“The right to be forgotten” is a legal concept that has gained prominence in the context of data protection and privacy, particularly in the European Union. It is enshrined in Article 17 of the General Data Protection Regulation (GDPR).
The right to be forgotten allows individuals to request the removal of their personal data from online platforms and databases under certain conditions. The Court of Justice of the European Union ruled that the search engine operator could be obliged to remove links to certain web pages from the list of results that appear when a search is carried out for a particular name, where the information is considered to be inaccurate, inadequate, irrelevant, no longer relevant or excessive for the purposes of data processing (Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, judgement of 13 May 2014).
However, the right to be forgotten is not absolute and must be balanced with other fundamental rights, such as freedom of expression and the public’s right to access information. Journalists have a responsibility to report on events and provide accurate information, and the removal of such information from archives may impact the integrity of historical records.
Is anonymisation a solution to this dilemma and is it always accessible?
Anonymisation of personal data is a process used to protect privacy by transforming or removing personally identifiable information from a dataset in such a way that individuals cannot be directly or indirectly identified. However, not always the requests of anonymisation are satisfied by the publisher.
As an example, it is worth recalling a case that refers to the publication of an article by a Belgian newspaper twenty years ago about a car accident that had caused death and injuries to several people. Particularly, the driver of the car, whose full name was indicated in the article, was convicted, served his sentence and was consequently rehabilitated. After digitalisation of the archives, which made the discussed article freely available online, the driver contacted the newspaper requesting to remove or anonymise it. He outlined that a simple search based on his name and surname in the Google or other search engines immediately brings the article which harms his reputation as a doctor. When the publisher refused his request, the driver brought proceedings against the publisher, and the domestic courts allowed most of his claims. Following this, the publisher applied to the European Court of Human Rights arguing that ordering him to anonymise the archived version of the article violated his right to freedom of expression.
What was the approach of the European Court of Human Rights?
In its judgement of 4 July 2023, the European Court of Human Rights, when balancing the competing interests in this case, considered the following:
- the nature of the archived information;
- the time that has passed since the crime was committed and the article was published;
- the current interest of the information;
- whether the person exercising the right to be forgotten is a public figure;
- the negative impact of the continued availability of the online information;
- the degree of accessibility of the information online;
- the impact of the measure on freedom of expression and on freedom of the press.
As a result, the European Court found that there was no violation of the right to right to freedom of expression taking into account that after rehabilitation and passage of a significant amount of time the driver had a legitimate interest to reintegrate into society without being permanently reminded of his past. It outlined that the anonymisation of the article did not impose an excessive burden on the publisher, while constituting the most effective means of protecting the driver’s privacy.
Protecting the right to privacy in the digital era is an extremely hard task. Therefore, international bodies, states and media organisations should continue to navigate these challenges and try to find a fair balance between individuals’ right to be forgotten and the freedom of expression in each individual situation.
M2 Cyberjustice – Promotion 2023/2024