Do free citizens have the right to be forgotten?

The Legal business of Thomson Reuters brought together some of the sharpest minds from the law, media and politics last week for its inaugural debate on “the right to be forgotten.” The debate, which took place on Feb. 17, 2015, was recorded in front of an audience of customers and partners, and was moderated by Reuters Axel Threlfall.

The right of an individual to control their own digital footprint and legacy is a highly contentious issue. It has far reaching implications for search engines and social media operators, and can come into conflict with other freedoms, such as the right to access legally-published information.

It is also a timely debate as a European Court of Justice ruling in May 2014 backed the right to be forgotten. Despite this ruling, our views on the subject may not be so clear cut. This became apparent through an interactive vote during the debate, which showed some surprising results. The poll was a key feature of the debate and enabled the audience to vote on whether they agreed with the motion, both before and after the debate.

Polling prior to the debate showed 57 percent of the audience was in favour of the right to be forgotten, with 26 percent against it. By the end of the debates, this was completely reversed with 59 percent voting against the motion and 38 percent for it. So what did they hear that changed their minds?

Right to be forgotten:

Right to be forgotten came into the spotlight following a case brought by a Spanish man before the European Court of Justice (ECJ) to have an announcement of a forced sale of a property arising from social security debts delisted from Google search results on his name.
The European Court of Justice (ECJ) ruled against Google in May 2014, and as a result, citizens now have the right to request the removal of links to “inadequate, irrelevant or no longer relevant” personal data.
The phrase “right to be forgotten” was mentioned only briefly in the ECJ judgment.
The ruling applies to search results within the EU but not other jurisdictions. There is no requirement for source information to be deleted.

Speaking at the debate, Peter Barron, director of communications, EMEA at Google, said that following the ECJ decision, Google has received more than 220,000 requests involving in excess of 785,000 URLs. The company has an army of lawyers and paralegals dealing with requests and to date, it has agreed to some 40 percent of requests, but has rejected in the region of 60 percent.

Although Google is now making complicated decisions that it never expected, or wanted to make, leading legal commentator Joshua Rozenberg believed the ECJ had struck the right balance with its decision. Ultimately, it doesn’t stop information from being there, but it was an important gesture regarding the balance of privacy and public information, and should not prevent the media from doing their job, he said.

Geoffrey Robertson, QC, argued that perhaps the right to be forgotten is really about the “right to be remembered accurately.” New technologies have created new challenges to privacy, and “unless they are regulated by the accepted data protection principles, its users will suffer outrageous invasion of their privacy or will have to censor themselves,” he said.

Whilst the right to be forgotten has backing from the ECJ, it was argued by Sir David Omand, former head of GCHQ, that it is not a fundamental human right, such as the right not to be tortured, and is instead a qualified right. Once something is in the public records, then it’s in the public domain and we should not have the right to rewrite history. The danger is that we are creating “law by slogan,” he said.

“This was a timely and contentious topic to kick off the series of legal debates,” said Jan Coos Geesink, managing director of the UK&I Legal business of Thomson Reuters. “It offered the opportunity to hear intelligent and insightful opinions on a legal issue that affects us all. And as the interactive voting showed, our opinions on the topic are subject to change – which was a surprising revelation for everyone.”

Watch the video of the debate below.