The right to be forgotten (RTBF) is an individual’s right to have their private information removed from internet searches or other directories under specific circumstances. This concept has been talked over and put into practice in several jurisdictions, including the European Union, Argentina, and the Philipines.
However, this concept has produced a lot of controversies. The issue with the RTBF stems from the practicality of putting it into practice as an international human right. This is mainly a result of the ambiguity of current rulings that are attempting to implement this right. Additionally, concerns have been expressed on how the RTBF would affect the right to freedom of expression, the right to privacy, and whether the RTBF would decrease the quality of the internet due to censorship and rewriting of history. People in favor of RTBF state that it’s necessary because of things like revenge adult content that comes up on a search engine result page when a person’s name is searched. Additionally, there are instances where search engines will reference petty crimes that someone has committed in the past. Therefore, the concern is that the appearance of these results may wield undue influence on a person’s online reputation if not removed.
Defining RTBF in Legal Terms
The right to be forgotten is a person’s right to have specific data removed so that third persons can’t access this information. For example, the RTBF ensures that people can have information, videos, or photos about themselves deleted from internet records so search engines can’t find them. As a result, people can receive protection from such harmful incidents as revenge porn sharing. Furthermore, if someone were to perform a background check, they wouldn’t have access to specific information on an individual.
The RTBF is different from the right to privacy. The right to privacy refers to information that isn’t publicly known. In contrast, the RTBF relates to information that was public at one time, and now the individual wishes to make it private.
Currently, there is no global framework that allows individuals to control their online image. However, certain countries have implemented laws to require the RTBF. For example, the European Union has the General Data Protection Regulation (GDPR), which gives individuals the right to request that an organization remove their personal information. However, they can only make this request if they meet the following criteria:
- The data isn’t required for the purpose that the organization initially collected and processed it.
- The individual withdraws their consent to the organization processing their data.
- There is no longer any legitimate overriding interest for an organization to continue processing an individual’s personal data.
- An organization is using an individual’s data for the purpose of direct marketing, and the individual objects to this use of their data.
- An organization is processing the individual’s personal data unlawfully.
Who Does the Right to Be Forgotten Apply To?
The RTBF applies to the processing of personal data related to individuals. However, whether you’re eligible for the RTBF depends on local laws.
In 2014, the EU enacted the RTBF privacy law. This law allows people in the EU to request the removal of their personal data from search results if this data is deemed inadequate or no longer relevant. The law only requires that Google remove links from its search results in Europe. However, under this law, an organization still has some rights to process someone’s data, overriding the RTBF. For instance, if the data is used under the right of freedom of information or expression. Or if the information is necessary to comply with a legal obligation or ruling.
In Canada, the only way to have personal data removed from search engines is through a common-law action for libel. In other words, the courts would have to issue an injunction. However, this is difficult to obtain. Canadian courts have to deal with various challenges when dealing with online defamation cases, such as whether the content is, in fact, defamatory in nature. Furthermore, Canada doesn’t have a formal rule in place for requesting the delisting of links.
The US doesn’t recognize the RTBF. This means that currently, the right to be forgotten doesn’t apply to anyone in the US.
The right to be forgotten is currently in practice in the EU, Argentina, and the Philippines. However, other countries have yet to follow suit. This may be because the RTBF can infringe on rights such as freedom of expression and information.
In the EU, the RTBF privacy law applies to individuals who meet certain criteria and also gives organizations rights to process data under certain circumstances.
Currently, the US does not recognize the RTBF.