The Right to be Forgotten – Group 2, Status Report 3

Introduction:

In our previous status report, we stated that we would concentrate our efforts in studying various aspects of the Right to be Forgotten (RTBF) bill, as well as compile the ongoing conversation around the issue. After the positive feedback we received on the last report, we decided to instead continue our research of the current state of the RTBF across different countries, focusing on how and if it is implemented in each. We also put emphasis in identifying variants of the RTBF in effect, and explaining the differences.

South Korea:

South Korea’s state-appointed media monitoring agency announced back in February that it will implement a version of the RTBF. “We have studied the rights to be forgotten for more than a year through a group composed of legal, academic and industry experts,” an official said. “We plan to introduce the guidelines in the first half of the year”.

There is still deliberation on the conditions under which the RTBF may be invoked. Users can request removal even if the data was legally posted, but approval depends on the nature of the information. For instance, the information should not be about public figures, such as high-profile officials and lawmakers, neither should they be newspaper articles and academic research that are in the public interest [1].

South Africa:

While South Africa doesn’t have a version of the RTBF implemented, they recently passed a “Protection of Personal Information” act, which, according to law experts, could open the door to users requesting the removal of personal information. As it stands now, the right to be forgotten in South African law is only applicable where information, which is being held by the responsible party, is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or has been obtained unlawfully. [2]

Australia:

Australian privacy law is governed by the Privacy Act 1988 and the Australian Privacy Principles (APP). Back in 2014, the Australian Law Reform Commission (ALRC) made a move in Europe’s direction, recommending that a “right to deletion of personal information” be inserted as an amendment to the Privacy Act as another APP. However, unlike the EU proposal, the ALRC’s suggested changes are strictly limited to information that has been provided by the requester themselves. It would not give individuals any scope to demand that information posted online or provided by a third party be removed, meaning that posts about an individual – but not made by them – would not become subject to erasure requests. [3]

China:

Even though China has very strict policies regarding  regulation of online data, there is no RTBF in effect. However, there may yet be a case which establishes precedence. Chinese comedian Deliang Xu is suing the Chinese search engine Baidu in an attempt to get a ruling similar to the European RTBF law. The comedian claims that a Baidu Baike (online encyclopaedia similar to Wikipedia) entry about him allegedly contains incorrect, defamatory content. His main argument is that, while Chinese law does not cover the RTBF, Baidu Baike is a revenue-making product as such cannot use Mr. Xu’s information to earn profit without his consent. [4]

India:

Currently in India there does not exist a RTBF framework and according to some respectable individuals like Pavan Duggal (cyber law expert), it is a concept that hasn’t gotten much traction yet. It is should be mentioned that there exist relevant articles in the law, specifically the IT Act and IT Rules, which upon written request force the removal of content from search engines and internet service providers. [5]

One prominent case of the RTBF in India was between Medianama.com and an individual who requested for the removal of some content [6] [7]. The individual threatened that if the site did not comply, he would go directly to Google and request the removal using their RTBF form, which in turn would hurt their search ratings. The company declined the request stating that the RTBF is enforced in Europe and is not binding for India. Finally the individual under legal pressure, retracted the request.

Canada:

In the case of Canada there is dispute on whether there is a need for a Canadian RTBF [8], given that there already exists an infrastructure for requesting the removal of content of individuals. Specifically, in Canada, the individual has complete control over the use of his/her personal information and image in the internet, and has the right to request the removal of information published without consent or with incorrect or not up to date data. Furthermore, it is important to note that the ability for an individual to request the removal of personal information is very different from the RTBF in Europe, which targets the results of search engines and not the underlying publishing sites. A relevant case took place in 2011 between Crookes v Newton , during which the Supreme Court of Canada  decided that the use of hyperlinks by search engines cannot be held responsible for “defamation purposes” since they are an integral part of how the internet works and information is shared. [9][10]

Brazil:

Recently in Brazil, a “Bill of Internet Rights” (“Marco Civil da Internet”) was approved, which focuses extensively on the protection of user privacy, while at the same time tries to keep a balance with the constitutional right to access information and the freedom of expression. While this bill brought forth the RTBF, it also included many controversial articles that caused lots of institutions, individuals and companies to protest [11]. It is also worth mentioning that Brazil has one of the highest demands for link removal worldwide.

Mexico:

Mexico currently does not have a RTBF but offers individuals the ability to file a complaint with a data controller when the information available is perceived to be in violation with the laws and regulations of Mexico. In recent news though, the Mexican Data Protection Authority (IFAI) is contemplating imposing sanctions on Google Mexico for an alleged breach of the nation’s data protection law, because it did not comply with a request from a Mexican citizen to remove personal data. The above case has been challenged from free-speech advocates, who believe that the enforcement of such a ruling will allow politicians and business people with shady pasts the ability to cleanse their online presence of any negative material [12][13].

Conclusion:

In our final presentation, we will compile our findings in a more comprehensive and succinct manner. Our main goal is to present the current state of the RTBF across the globe such that the reader can get a spherical view.

Citations:

[1]:  http://www.koreaherald.com/view.php?ud=20160221000366
[2]: http://www.iol.co.za/business/opinion/what-sa-law-says-about-the-right-to-be-forgotten-1702860
[3]: http://www.itnews.com.au/news/law-reform-commission-proposes-a-8216right-to-be-deleted8217-381327
[4]: http://sinosphere.blogs.nytimes.com/2015/09/02/chinese-comedian-suing-baidu-over-biographical-entry/
[5]: http://cyberblogindia.in/right-forgotten-origination-indian-scenario/
[6]: http://www.livemint.com/Industry/5jmbcpuHqO7UwX3IBsiGCM/Right-to-be-forgotten-poses-a-legal-dilemma-in-India.html
[7]: http://www.medianama.com/2014/06/223-right-to-be-forgotten-india/
[8]: http://www.mcmillan.ca/The-Internet-Never-Forgets-Google-Incs-right-to-be-forgotten-EU-ruling-and-its-implications-in-Canada
[9]: http://www.cbc.ca/news/technology/right-to-be-forgotten-how-canada-could-adopt-similar-law-for-online-privacy-1.2676880
[10]: http://www.mondaq.com/canada/x/412100/Data+Protection+Privacy/Right+To+Be+Forgotten+Supreme+Court+Of+British+Columbia+Denies+Injunction+To+Compel+A+Search+Engine+To+Remove+Search+Results+Worldwide+Niemela+V+Malamas+2015+BCSC+2014
[11]: https://www.eff.org/deeplinks/2015/10/brazils-terrible-pl215
[12]: https://iapp.org/news/a/the-responsibility-of-operationalizing-the-right-to-be-forgotten/
[13]: http://www.wsj.com/articles/google-wages-free-speech-fight-in-mexico-1432723483

Authors:
Konstantinos Ioannou
Alexandros Sympetheros