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The Right to Be Forgotten Under Gdpr

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Privacy is an old concept that first mentioned in 1604 by Edward Coke, the Attorney General of England. Since then our rights of privacy have been challenged by many authorities and now it has been challenged by companies too. We will cover the types of privacy and how to check the difference between Privacy Violation and the legal rights for everyone to.

Private Information first definition was in 1888 as: the right to be left alone. Then in 1890 it expressed more to: if people don’t want to give up certain things that are private to them, then they should be able to retain the power to fix the limits of their publicity.

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There was a lawsuit in 1928 at the Supreme Court in the US, where Roy Olmstead was convicted by an evidence recorded using illegally installed wiretaps by federal agents. The Court accepted the evidence and found it not violating the self-incrimination nor breaking the rights of physical examination for one’s home. At that time Justice Taft wrote “If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we are condemned for lack of high ideals.”, but the Justice of the Supreme Court Louis Brandeis said another point of view that “ways may someday be developed where the government, without removing papers from secret drawers, can reproduce them in court.”. Now a days they used this example to make a new law that any type of action concerning Privacy Violation should be associated with a warrant before it is done.

In 1960 William L. Prosser, a legal scholar documented and defined four types of privacy torts, so if a person who got his privacy violated can sue for the damage. Those torts are still used today and they are:

  1. Intrusion upon seclusion or solitude, or into private affairs;
  2. Public disclosure of embarrassing private facts;
  3. Publicity which places a person in a false light in the public eye; and
  4. Appropriation of name or likeness. *In this paper, we will talk about the second and third branches.

Another mile stone on the way there was the Katz vs the US case in 1967, where the federal agents attached an eavesdropping device to the outside of a public phone booth. After the court ended John Marshall Harlan introduced the idea of ‘reasonable expectation’, and said “if an individual has an expectation of privacy, and society is prepared to recognize this expectation as reasonable, then there is a right to privacy in that circumstance.”. So, if somebody closed the phone booth door he is expecting privacy and he expect that no one is outside trying to listen to the phone call, without a warrant. Then in 1979 Louis Brandeis definition of privacy confirmed as a law so nowadays if someone wants to wiretap, he must get a warrant first.

One big question someone can ask, if we voluntarily told something about ourselves to others, then this information has less protection than other stuff that we kept to ourselves. So, the problem is if we give someone our information is he allowed to do whatever he wants with it or is he obligated to a certain use of it, and can he force his way though and gather all the information he can get or he must preserve our privacy without him even looking at it.

The Right to be Forgotten

Long time ago, before the internet age. People living in small towns had a little privacy and everybody knows what everybody is doing. And if someone did something wrong and it gets on everyone’s tong, he could move out to another town or move to the city where no one cares about anyone news, or even he can wait it out until everyone forgot about it. Nowadays with the internet spreading, no one can fix any of his mistakes if it gets online. He can’t erase it because it is easy to copy and he can’t wait it out to fade because everything on the internet is preserved.

What about the Offenders out there, who spend their time in prison or who paid for their mistakes, don’t we have to forgive them in some point? So if they are seeking for job or getting insurance their mistakes must not be mentioned if it was outdated. This principle in the UK was implemented under the Rehabilitation of Offenders Act and France has a similar right “le droit d’oubli, the right of being forgotten”. But what if the employer did a search on the search engine which all new and old information about the job seeker then the employer decided not to employee him because of an old conviction that he knows it is spent.

Mario Costeja González a Spanish lawyer who had his home force sailed due to outstanding social security debts and was published in Spanish newspaper La Vanguardia in 1998. After 11 years in 2009, González found out that this announcement is still showing up in Google search result and he didn’t like that. So, he contacted the newspaper and ask them to remove the announcement and the refused, then he files a complaint to the Spanish Data Protection Agency asking for La Vanguardia and Google to remove this story. The agency director refused the request for the newspaper because it was done by the law, but he accepted the one regarding Google and telling them to remove the links to and make the access to that data impossible. The Highest Court in the European Union supported the Spanish Agency directors saying Google is responsible for its search result privacy violation and that people has the right to be forgotten.

There was a problem with this case that if you interred Google form EU as in google.de the link will be erased, but if you did you search on the American Google as in google.com the link will appear and the right to be forgotten law won’t be applied outside the EU.

The Right to Erasure and GDPR

The Right to Erasure or The Right to be Forgotten was implemented in the General Data Protection Regulation “GDPR” and now any company that collects data on its users have to comply for their requests for erasing their data if the user wants to. But is that allowed for everyone? And is it possible to deny this request? And what type of information could be erased?

The GDPR has more details about where the right of erasure applies:

  • where the personal data are no longer necessary to achieve the purposes for which they are collected or processed.
  • where a data subject has withdrawn his or her consent.
  • where a data subject objects to the processing of his/her personal data.
  • where the data subject has given his or her consent as a child and is not fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet.
  • where the processing of personal data does not otherwise comply with the GDPR.

So, what about business people handling our money are they able to erase a prior bankruptcy or a politician to delete some troubling behavior from the past. Not all information erasable, there are also specified exceptions that are mentioned in the GDPR:

  • the right of freedom of expression and information.
  • compliance with a legal obligation.
  • the performance of a task carried out in the public interest.
  • a task carried out in the exercise of official authority vested in the controller.
  • public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes.
  • the establishment, exercise or defense of legal claims.

The Right to be Forgotten in America

This law won’t be implemented in the US because it has very vague boundaries and they are open for interpretation and whom would decide what information could be erased and which not. Also, it conflicts with the First Amendment which grants citizens the right to free speech. And removing a link form search result will be considered a type of censorship. The international director at the Electronic Frontier Foundation Danny O’Brien says “The First Amendment really does prevent this kind of widespread unpublishing of data”. Either way, the Americans have privacy protection but it is spread across other laws that is specific for groups of people, like deleting the data for minors or if a digital identity was stolen.

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