THE BLOG

Forget Me Not: The Legal Right to Be Forgotten

21/04/2015 10:29 BST | Updated 19/06/2015 10:59 BST

Do you fancy your grandchildren being able to see that Saturday night pic from your student days in thirty years time? Your great-grandchildren or even their friends? What do you think happens to all these texts, Facebook posts, tweets and Instagram photos as you age and move through the different stages of your life? Generally, not that much. They remain fixed in time, stuck on the web if you will and there are those who want to change it. A 'right to be forgotten' has emerged and it's gaining some traction, particularly within the European Union. Civil rights activists, legal experts and Google amongst others have all weighed in on this issue; some expressing concern, others support.

The 'right to be forgotten' or 'right to be deleted' as it is also known, made a very loud entrance in March of 2014. The European Court of Justice found in favour of a Spanish citizen who demanded that Google remove information from search results that he deemed to infringe his privacy and were of no relevance. It is from this case that we see the precedent of the right to be forgotten emerging. Indeed, in the eight months since the Court handed down its decision, Google was facing more than 1000 requests a day for links to be removed by individuals across Europe and the globe. It has also sparked a backlash in other EU states. Major broadcasters such as the BBC in the UK have made moves to counter this decision, announcing in October of 2014 that it would publish a continually updated list of its articles removed from Google under the controversial decision.

Other countries have taken notice too. In Australia, the Law Reform Commission has recommended that Australia adopt a right to be deleted policy whereby people can compel online organisations such as Google, Facebook or Twitter to delete or de-identify information they hold about them. This would include information that they posted themselves, such as that Facebook status update at 2 AM. Other countries such as Japan are exploring similar policies.

In many respects the decision seems inevitable. At some point legal institutions needed to address the privacy concerns that such websites pose. Although the law has not progressed so far as to carve out a general standard or scope of a right to be forgotten, it is currently interpreted as allowing individuals to request that personal information or links be deleted from search results. The proposed right in Australia, put forward by the Law Reform Commission, is more narrow in scope than its EU counterpart. Its suggestion is to require such entities to provide a simple mechanism for an individual to request destruction or de-identification of personal information.

Some advocates have claimed that this proposed right should not be enshrined in law as it poses risks to free speech. For example, such a right could potentially allow convicted criminals to force the deletion of links reporting their crimes. Such risks are perhaps overstated as the right only allows individuals to request the deletion of such material. Further, the right would only extend to material that an individual has provided - such as social media posts or tweets. So far, its enactment within the EU hasn't affected much original content, only the pointers to it through search engines. This is an important difference, the material is still available just not immediately accessible. Others have warned that we shouldn't confuse freedom of speech with the right to privacy.

How have concerned companies responded? Google have formed a committee that reviews requests and the links associated with them on a case by case basis and they have published examples of what they will agree to remove without issue. They are also running advisory sessions in major cities throughout Europe. There is also a question of what information should or should not be kept in the public domain. Should those in public office have links to their resumes left available or their membership associations? Should celebrities be able to remove links to tabloid articles? Critics argue that this right is enabling people to reconstruct their identities online but the Court and the European Commission have since stressed that this rule does not give individuals a right to reconstruct history as they would like to see it.

This leaves private companies in a difficult position whereby they must balance their commercial interests with that of public policy. Should they remove links to named victims of crimes if they wish to? Should they remove links to a director with a history of failed businesses if said director wants to apply for a new job? Could you request that your ex partner remove all your photos from their Facebook account? The answers remain unclear.

Clearly there are many grey areas. It will be interesting to see how Google and other companies will continue to manage this issue in house without further judicial guidance or appropriate administrative review procedures being put it place. For the time being, check out the BBC's updated list which it has said it will maintain as a resource for those who are interested in this debate. And think twice about uploading that selfie.