Right to be Forgotten: A New Privacy Right in the Era of Internet

Haga, Yuriko

doi:10.1007/978-981-10-5038-1_5

Right to be Forgotten: A New Privacy Right in the Era of Internet

Yuriko Haga⁵

Chapter
First Online: 05 September 2017

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Part of the Perspectives in Law, Business and Innovation book series (PLBI)

Abstract

The right to be forgotten is a new right proposed in the context of information society. Reactions to this right vary from country to country because the concept and rationale are not clearly fixed yet. The absence of a consensus on this point has the potential to create uncertainty in an information society that is becoming borderless. Country-specific decisions are not enough for the smooth development of this concept and there is an urgent need to reach a consensus around core points. The starting point of the argumentation here is whether the right to be forgotten is a part of the right of privacy or a totally different right. In spite of some differences, the chapter argues that the right should be deemed an extension of privacy. However, because understandings on the concept of privacy itself are not harmonized, there is a confrontation between countries, specifically between European countries and the United States. The concept of privacy was born at the end of the nineteenth century and countries have developed it taking into account their own fundamental values. However, because of the borderless character of society today, the conflict between fundamental values, notably the privacy to protect the dignity of the individual versus the right to know to guarantee freedom of expression, comes to the surface. This conflict is one of the traditional issues related to privacy and is particularly serious when contemporary societal changes are not taken in consideration. This blocks the possibility of a consensus on the ideal concept of privacy today. An analysis on the right to be forgotten clarifies traditional questions on privacy and it may also be necessary to modify the general theory itself. At the end, the chapter focuses on the current situation of the right to be forgotten in Japan.

Keywords

Right to be forgotten
Privacy
Internet
Information
Personal data

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Notes

1.
Rosen (2010).
2.
Proposition de loi visant à mieux garantir le droit à la vie privée à l’heure du numérique, Sénat session ordinaire de 2009–2010, No. 93, p. 8.
3.
Carter (2013), pp. 24 et seq., shows the first case of the right to be forgotten in Argentina, Da Cunha Virginia v. Yahoo & Google.
4.
Rosen (2012a).
5.
COM (2010) 609, p. 8.
6.
As to this judgement, see Kranenborg (2015), Oro Martinez (2015).
7.
In addition to already mentioned Articles, see, e.g., Van Alsenoy and Koekkoek (2015), pp. 105 et seq., Marino (2014), pp. 1300 et seq., Hardy (2014), pp. 879 et seq., Picod (2014), p. 1068, Kranenborg (2015), pp. 70 et seq.
8.
Warren and Brandeis (1890), p. 195.
9.
Prosser (1960), p. 389.
10.
For example, Fried (1968), p. 482 (“Privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves”) [emphasis added]. See also Westin (1967), p. 5, Miller (1971), p. 25.
11.
Cf. also the discussion around the “Privacy by Design (PbD),” concept proposed in 1990s by Ann Cavoukian, Information and Privacy Commissioner for Ontario. See, e.g., Rubinstein (2011), pp. 1409 et seq.
12.
The judgment of the CJEU also pointed out that the object of legislation concerning “the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law” (para. 3 10).
13.
A Chapter concerning the online privacy of minors (Chap. 22.1, beginning with section 22580) is inserted into the Californian Business and Professions Code. About the detail of this amendment, see http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568. Accessed 21 September 2016. See also Lee (2015), pp. 1173 et seq.
14.
White House, Administration Discussion Draft: Consumer Privacy Bill of Rights Act of 2015, available at: https://www.whitehouse.gov/sites/default/files/omb/legislative/letters/cpbr-act-of-2015-discussion-draft.pdf. Accessed 21 September 2016.
15.
See, e.g., Freicher (2011), Ryan (2011), Saunders (2011). About the reaction of the SNS companies, see, e.g., Fiveash (2011), Promchertchoo (2011) or Walsh (2011).
16.
In Japan, the courts have changed decisions several times. While the decision of the Tokyo District Court of 9 October 2014 and the decision of Saitama District Court of 22 December 2015 recognises the right to be forgotten, the decision of Tokyo High Court of 12 July 2016 shows negative to the right. In Canada, the understanding of the right is narrower than that of the EU. See Gupta (2013), Cavoukian and Wolf (2014). The Office of the Privacy Commissioner of Canada, however, points out the necessity of the analysis of the right to be forgotten “in the Canadian legal context.” The Office of the Privacy Commissioner of Canada, The OPC Strategic Privacy Priorities 2015–2020: Mapping a course for greater protection, available at https://www.priv.gc.ca/media/2071/pp_2015_e.pdf. Accessed 21 September 2016. In Switzerland, there is a case in which a business person sued Wikipedia, Google and other newspaper and broadcasting companies to delete information about him. This is considered as a case concerning the right to be forgotten. The Federal Court has admitted only a few requested deletions for the reason that the majority of information publication is done for the purpose of press reports. About the judgement, see press release of the Federal Court of 18 June 2015, available at http://www.bger.ch/fr/press-news-5a_658_2014-t.pdf. Accessed 21 September 2016.
17.
Valles (2001).
18.
About the response of other countries to the privacy rules of the EU at the beginning of 2000s, principally to the Data Protection Directive, see Heisenberg (2005), pp. 101 et seq.
19.
According to the StatCounter.com, the worldwide top 5 share of search engines (from August 2015 to August 2016) is as follows: (1) Google 89.14%, (2) Bing 4.33%, (3) Yahoo 3.35%, (4) Baidu 0.74%, (5) YANDEX 0.53%. As seen here, the most part is American which may not share the European concept of privacy.
20.
For the reference, Purcell et al. (2012).
21.
Angelo (2009).
22.
Here, we can recall, for example, the question of the borrowing record of a library and privacy. Seeing the record, we can guess the borrower’s interests, tastes or thoughts. Therefore, it is traditionally considered that the borrowing record should not be open to public without strong justification because this information falls within the scope of privacy protection. See, e.g., Miller (2009), pp. 19 et seq., Robertson (2011), pp. 307 et seq.
23.
Duhiggfeb (2012).
24.
Article 22 of the Data Protection Regulation of the EU provides the rights of the data subject concerning the automated individual decision-making, including profiling.
25.
See the above-mentioned CJEU judgement of 13 May 2014 (C-131/12). Because of its importance to society, the liability can be justified. See Jones (2014), p. 599.
26.
In Japan, for example, the attitude of courts is not consistent. Some court decisions have ordered the deletion of information. For example, the decision of Tokyo District Court of 9 October 2014 or the decision of Saitama District Court of 22 December 2015 (the court decides that the search result is “edited” according to the policy of the search engine even though the collection of information is mechanical). Other courts do not recognize the liability of search engines, for example the decision of Kyoto District Court of 7 August 2014 (saying that the URL as well as the snippet are mechanically and automatically acquired from the website and the search engine does not show the fact itself). About the discussion in Europe regarding this point (specifically in the UK), see Hurst (2015), spec. pp. 188–193.
27.
Rosen (2012a).
28.
See also Article 19 of the Universal Declaration of Human Rights of the United Nations.
29.
Freicher (2011).
30.
The right to be forgotten is originally proposed “historically…in exceptional cases involving an individual who has served a criminal sentence and wishes to no longer be associated with the criminal actions.” Ambrose and Ausloos (2013), pp. 1–2. Often the exposure of the criminal record is questioned in relation to the privacy. Some cases concerning the right to be forgotten are also on the criminal record (for example the decision of Saitama District Court of 22 December 2015).
31.
The above-mentioned CJEU Judgement has also referred to this point (para. 97 explains that the deletion is not admitted “if [the data subject’s name] appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.”).
32.
IFLA Statement on the Right to be Forgotten (2016), 31 March 2016, available at http://www.ifla.org/publications/node/10320. Accessed 28 September 2016.
33.
IFLA Statement on the Right to be Forgotten (2016).
34.
IFLA Statement on the Right to be Forgotten (2016) (“When search engines make the decisions, their full consideration of the issues of privacy versus the public interest is not transparent.”).
35.
Guiton (2015).
36.
Of course, search engines release their policies on the removal of search results to guarantee the transparency, but it is the search engines that have the final say. This concern is expressed also by the NGO Reporters without Borders (RWB). The RWB describes the CJEU judgement of 28 May 2014 as “opening Pandora’s box which would be difficult to re-close” and the situation where search engines are delegated to decide to delete the information as an “infernal spiral.” RWT, L’engrenage infernal du droit à l’oubli, 4 juillet 2014, available at https://rsf.org/fr/actualites/lengrenage-infernal-du-droit-loubli. Accessed 30 September 2016.
37.
The above-mentioned NGO, RWB, insists that the decision should be done by the courts. See Recommendations on the Right to Be Forgotten by La Quadrature du Net and Reporters Without Borders, 26 September 2014 (“Responsibility for a decision involving individual freedoms that should be handled by a court is thereby delegated in practice to a private sector company. This delegation of responsibility is all the more dangerous because the ruling is based on vague and general principles that provide no guarantee for freedom of expression.”). Available at https://rsf.org/en/news/recommendations-right-be-forgotten-la-quadrature-du-net-and-reporters-without-borders. Accessed 30 September 2016.
38.
See Rosen (2012b), p. 1533.
39.
Beignier (1992), pp. 60–61, Whitman (2004), pp. 1160–1164.
40.
Whitman (2004), pp. 1164 et seq.
41.
Whitman (2004), p. 1161.
42.
The First Amendment states that the federal “Congress shall make no law…abridging the freedom of speech,” which is also applied to state governments [cf. Gitlow v. New York, 268 U.S. 652 (1925)]. The balance between these two values, which has been long discussed, remains contemporary; recently some point out the “privacy restriction” of the First Amendment. See, e.g., Volokh (2000), pp. 1050 et seq., Richards (2005), pp. 1149 et seq., Fazlioglu (2013) pp. 155–156.
43.
Westin (1967), p. 5 explains the privacy as the right to “determine…when, how, and to what extent information…is communicated to others.”
44.
Westin (1967), p. 420.
45.
Ausloos (2012), p. 147.
46.
Solove (2012), pp. 1880 et seq.
47.
Morrison (2015).
48.
Solove (2012), p. 1881.
49.
Ausloos (2012), p. 143.
50.
Ambrose (2013), pp. 11 et seq., points out the temporality of information on the web. A good deal of information disappears soon and it is not necessarily saved for all time.
51.
Bennett (2012), p. 167.
52.
Rosen (2010).
53.
Solove (2006), p. 531 (“People grow and change, and disclosures of information from their past can inhibit their ability to reform their behavior, to have a second chance, or to alter their life’s direction.”).
54.
Bennett (2012), p. 170, citing Melvin v. Reid [297 P.91 (Cal. Ct. App. 1931)] and Briscoe v. Reader’s Digest Association Inc. [483 P.2d 34 (Cal. 1971)].
55.
As already mentioned, the market of search engine is controlled by American companies, and on the other hand the plaintiff is often non-American, in many cases European. A difference in the sense of privacy is pointed out: “Americans want to be famous while the French want to be forgotten.” Rosen (2012b), p. 1533.
56.
The EU is aware of the question and it has published the opinion on this issue (Opinion 8/2010 on applicable law, adopted on 16 December 2010. Available at http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp179_en.pdf. Accessed 7 October 2016). However, as it is the discussion in the framework of the Data Protection Directive and the Data Protection Regulation will be soon in force, the discussion should be renewed and more developed.
57.
Sogabe (2016), p. 4. A decision of a district-level court is found (decision of the Tokyo District Court of 14 November 2008).
58.
The most famous anonymous textboard in Japan, launched in 1999. In such anonymous textboards, many infringing writes can be found.
59.
Called in Japanese language “matome [meaning “compilation”] site”; it designates a round-up and add-up site which collects and “copy-and-pastes” information from other websites, SNS or anonymous textboards,.
60.
As to the variation of cases in Japan, see Mori (2015), pp. 51 et seq.
61.
For example, the decision of the Tokyo District Court of 19 March 2012. See also Ogura (2013), pp. 22–23.
62.
Article 2 (3) defines the “telecommunications service provider” as “a person who relays others’ communications with the use of specified telecommunications facilities, or provides specified telecommunications facilities to be used for others’ communications.”
63.
Sogabe (2016), p. 9.
64.
See, e.g., the judgement of the Tokyo High Court of 12 July 2016 admitting that “the claim of the defendant [search engine] of not being liable for the defamation because of being a mere information mediator cannot be accepted.” Of course, the liability of the search engine as information mediator is different from that of the information addresser. The former is limited and admitted more narrowly than the latter. On this point, see Mori (2015), pp. 53–54. See also Ogura (2013), p. 23. Some scholars oppose this stance of the courts. See Matsui (2013), p. 401.
65.
It should be pointed out that the judgement of the Supreme Court of 25 June 1969 is a criminal case, but the criteria shown in this case seems to be taken in consideration in civil cases. See also Ogura (2013), pp. 20–22.
66.
See Kanda (2015), pp. 42–43.
67.
Kanda (2016), pp. 43 et seq. This article explains the logic from the viewpoint of the plaintiff.
68.
For example, interestingly, Japanese people hope to stay anonymous (or sometimes they use pseudonym) when they make a donation. Suppose a case that a person makes an anonymous donation and a newspaper publishes an article with his real name. This article should not be deemed defamatory because his reputation is not damaged.
69.
Kanda (2016), p. 44. In fact, in the cases of the Tokyo District Court of 9 October 2014 or of the Saitama District Court 22 December 2015, the defendants counter-claimed that the plaintiff’s claim lacked the “unknowingness” factor because the information in question was already published and known to the public.
70.
After the completion of this chapter, the Supreme Court of Japan published a decision on this issue. The decision of the Supreme Court of 31 January 2017 (the final appeal decision of the case of the decision of the Tokyo High Court of 12 July 2016) ruled that the deletion of information should be dealt with in the framework of the existing theory of privacy, balancing between individual respect and public interest, without referring to the term “right to be forgotten.”
71.
Although the majority of the scholars consider that the right to be forgotten is not necessary, as well as the opinion of the Japanese Court, some argue the necessity of law-making. See Miyashita (2016), p. 35.
72.
Available in the Japanese language at http://www.soumu.go.jp/main_content/000369245.pdf. Accessed 27 December 2016.
73.
The Working Group Report (2015), p. 32.
74.
The Working Group Report (2015), p. 33.
75.
Sogabe (2016), p. 19.
76.
See Murata (2016), p. 531.

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This chapter is supported by the Research Grant-in-Aid of the KDDI Foundation.

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Yuriko Haga

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Haga, Y. (2017). Right to be Forgotten: A New Privacy Right in the Era of Internet. In: Corrales, M., Fenwick, M., Forgó, N. (eds) New Technology, Big Data and the Law. Perspectives in Law, Business and Innovation. Springer, Singapore. https://doi.org/10.1007/978-981-10-5038-1_5

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