Should There Be a Right to Be Forgotten?

Librarians debate EU privacy laws at Midwinter

January 11, 2016

(From left) James Neal, Abigail Slater, and Alan Inouye
(From left) James Neal, Abigail Slater, and Alan Inouye at OITP's discussion of privacy laws.

ALA’s Office for Information Technology Policy (OITP) hosted a discussion at Midwinter about the right of European Union citizens to have links to certain personal information removed from the results of web searches on their names. Should the United States adopt similar rules?

The panel included James G. Neal, university librarian emeritus of Columbia University, trustee of the Freedom to Read Foundation, and a member of ALA’s Executive Board; Abigail Slater, vice president, legal and regulatory policy, for the Internet Association; and Tomas Lipinski, dean of the School of Information Studies at University of Wisconsin-Milwaukee, and a member of IFLA’s Committee on Copyright and Other Legal Matters. Alan S. Inouye, director of OITP, moderated the discussion.

Slater, who is originally from Ireland, called herself the panel’s “token European” but opened by noting her disagreement with the ruling, saying, “I wish I could explain the court’s opinion.”

The court case that established the rules centered on Mario Costeja González, who wanted to have Google remove references to a 1998 newspaper article about his foreclosed home, which came up whenever his name was searched. The Spanish Data Protection Agency said he had right to be forgotten by Google but not by the newspaper that originally ran the foreclosure notices. The case went to the European Court of Justice, which ruled that search engines had to comply with EU privacy laws.

Slater pointed out that the 1995 data privacy law was written in the pre-Google era of dialup modems, and she said it is not clear the law applies to search engines or to data that is not localized (i.e., stored in European states; the Google ruling applied to data stored in California).

Google argued that its search engine is an algorithm, not a data controller. But the court ruled otherwise. The ruling is the law of land for the 28 EU member states. Since the ruling, Google has had 1.2 million requests for URLs to be taken down and has granted 40% of them, Slater said.

In the wake of the decision, Slater said she is seeing a steady increase in the opinion that European privacy norms should be global, and not just for search engines. But what happens when other countries—for example, Turkey, Russia, or China—want their standards to take precedence? “I don’t want to scaremonger,” Slater said, “but it’s going to be a challenge.”

Neal compared the right to be forgotten to not just erasure but oblivion, rewriting history, and limiting free expression.

“My brief remarks are a polemic,” he said, noting that he is seeing similar legislative actions already popping up in Asian and South American countries.

Neal highlighted several areas of the European law that should concern librarians:

  • Copyrights: A similar law in the US would remove material not just about a person but by a person. Can we support making information removed and thus invisible? Such a move would have unintended and serious repercussions for research.
  • Equity: Such a law would also likely create a new digital divide, he asserted—people with wealth will be able to exercise influence in ways regular people can’t.
  • Access: Librarians already face challenges in the cataloging of born-digital content. Right to be forgotten laws would be another nail in that coffin.

Neal concluded that information professionals must be knowledgeable about these laws and must be political and legal advocates for freedom of expression.

Lipinski approaches the topic from a human rights perspective. The preservation of historical records is important and often threatened. People have the right to publish information about various topics, and imposing standards on what can be published would be inconsistent with the First Amendment.

Lipinski also noted, “If information is truthful about me but is 10 or 20 years old, I may regret it, but it’s still truthful.”

When asked by an attendee whether a right to be forgotten law might protect people against internet harassment, Neal pointed out that the real need in that situation is to protect people from criminal behavior. He believes right to be forgotten laws are not the best way to do that.

Updated Jan. 12 to correct Tomas Lipinski’s title.

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