Do you have the right to be forgotten online?

2014-07-30 10:30 - Emma Thelwell
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Hackers target personal data. (Duncan Alfreds, Fin24)

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Erasing history at the touch of a button is something we all might wish we could do, but is it right - and is it even possible in South Africa? News24 finds out.

Google, which has cornered 94% of South Africans’ online searches, only has a “very short list” of things it will consider scrubbing out, according to its chief legal officer David Drummond.

So it set tongues wagging in May, when the European Court ruled against Google in favour of one Spanish man’s “right to be forgotten”.

So what’s changed?

It was a landmark case that has given people the right to ask search engines to remove European search results that include their name, if the results shown are “inadequate, irrelevant or no longer relevant, or excessive.”

Following the court ruling, Google, Microsoft and Yahoo met with the ‘WP29’ - a group of European Union national data protection authorities.

Since May, the WP29 have been debating whether or not to force search engines to remove search results when people exercise their “right to be forgotten”.

But Isabelle Falque-Pierrotin, head of France’s privacy watchdog and leader of the WP29 said it was a “complicated issue” that they had not reached a consensus on yet.

What does it mean for Google?

Google, Microsoft and Yahoo are all stuck between a rock and a hard place, according to Duncan Brown, director at the UK-based research and consulting firm Pierre Audoin Consultants.

Brown said: “They are being attacked for removing, or refusing to remove, links to content held on other web sites. They are deemed censors if they remove data, and breaching civil rights if they don’t. As soon as they remove links, media organisations republish the material, and we’re back to square one.”

In a recent blogpost, Drummond said Google’s “short list” of deletable items include anything a court says is illegal (such as defamation), any pirated content, malware, personal information - such as bank details, child sexual abuse images and other things banned under local law (such as material that glorifies Nazism in Germany).

Other than that, Google abides by article 19 of the Universal Declaration of Human Rights, which states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

In deciding what to remove, search engines also have regard to the public interest. According to Drummond: “These are, of course, very vague and subjective tests”.

What does this mean for South Africa?

The case won by the Spaniard, Costeja Gonzalez, was based on European data protection rules. Here in South Africa, our Protection of Personal Information Act “POPI” has been passed, but not yet been enforced.

But according to Dario Milo, partner at law firm Webber Wentzel, it is modelled on EU law and when it is enforced, it will “certainly have an impact for websites that process personal information of data subjects and store that information”.

Much of the Act is centered around the way companies collect, store and use personal data.

“So any processing of personal information - even publishing on the internet - will need to comply with POPI,” said Milo.

Johannesburg-based media attorney Willem de Klerk agrees that once the law comes into effect it could “open the door” to similar challenges from South Africans.

However, he points out that most people want to erase an article or blogpost that they are mentioned in, simply because “they don’t like it”, according to De Klerk.

The problem is, newspapers and websites are exempt from the Act.  And as long as the articles are published lawfully, as De Klerk points out, “there is no reason why we should erase history.”

So legally, a court might rule that you have the ‘right to be forgotten’ in a Google search, but you would still be able to find the information on a newspaper’s online archive.

Is there any way to delete your history?

Your best bet, according to De Klerk, is to go straight to the source. A news website, for example, is not obliged to delete an article featuring information that is correct, but that you don’t like. But if the information about you is irrelevant or incorrect, you can ask them to publish an update.

Brown said he has “immense sympathy” for individual cases, arguing that content that is “wrong and injurious should be removed”.

That said, he believes focusing on search engines is “misconceived”.

He added: “Google, Microsoft and Yahoo are easy targets. If legislators really want to enforce the right to be forgotten they must target the originators of the content. Anything else is lazy legislation.”

Read more about: google  |  online privacy

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