The Right to Be Forgotten
Every interaction by or about a person on the Internet, whether intended as public, semi-private, or private, is vulnerable to instant digital tattooing. For this reason, the right to be forgotten is emerging as a compelling companion to privacy. Privacy, like Article 19, features in the Universal Declaration of Human Rights. Article 12 states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Privacy is an increasingly complex topic pertaining to, at least, information privacy, bodily privacy, privacy of communications and territorial privacy. And, of course, Articles 12 and 19 are related to other human rights, such as freedom of association.
Referred to as the Google Spain decision, in May 2014, the Court of Justice of the European Union (CJEU) recognized the principle of the right to be forgotten, ruling that search engines can be compelled to remove search links to data that is considered "inadequate, irrelevant, or no longer relevant." In this case, a Spaniard, Mario Costeja González, requested the removal of links to a newspaper notification of an auction of his property to pay off his debts. Twelve years later, debts having been paid off, he petitioned for the removal of the notification, claiming a right to be forgotten and that the notification was no longer relevant. The court allowed the article to remain on the newspaper’s website, but required Google to delete any link connecting Costeja González to them. While this decision establishes the right to be forgotten as the removal of links, it results in the removal of the public’s access to information.
While some individuals are interested in the right to be forgotten on a personal level, professions too have an interest in the topic. Librarians have to grapple increasingly with the inherent tension between advocating for access to information and respecting privacy and confidentiality in the emergent context of the right to be forgotten. This involves dancing along a very tight line-- both working within the framework of the law and participating in law reform. The balance of seemingly competing principles is not new to librarianship where the pursuit of access to information also strains against the upholding of intellectual property rights. Arguably, given the intensely personal nature of privacy and confidentiality, the stresses accompanying the right to be forgotten are even more poignant.
The new Canadian Federation of Library Associations/Fédération Canadienne des Associations de Bibliothèques [which succeeds the Canadian Library Association] adopted the longstanding 1976 CLA Code of Ethics, which includes commitments to both intellectual freedom and privacy. Meanwhile, multiple rhetorical statements adopted by the International Federation of Library Associations and Institutions (IFLA), including the Code of Ethics for Librarians and Other Information Workers (2012), stress confidentiality and privacy of library users in accessing resources and services, especially Internet use, including minimizing leaving traces of identifiable records. Yet they also advocate for disclosure of personal information of others in other arenas grounded in the ideas of transparency and the public’s right to know (e.g. public figures in such fields as business and government). See IFLA Statement on the Right to be Forgotten (2016). Ostensibly the rhetoric treats other people differently than a library’s own clients.
IFLA distinguishes between the removal of (or update to) content by an owner for their own purpose versus a right to be forgotten application to have search results delisted by a search engine. Both are intentional actions, yet the first seems to be a more serious violation of unfettered access to information as it is done without transparency, is not subject to a vetting process, and is more likely to be permanent. Inherently, the distinction between “information owner” and “information subject” comes into play here, but introduces the even larger question of when does information posted on the Internet become a public good?
In IFLA’s Statement on the Right to Be Forgotten, allowance is made for consideration of contextual evaluations of a right to be forgotten application, acquiescing that “some information on the Internet can be unfairly damaging to an individual’s reputation or security where it is untrue, where it is available illegitimately or illegally, where it is too personally sensitive or where it is prejudicially no longer relevant, among other possibilities”.
In its 2016 Statement on the Right to Be Forgotten, the IFLA provides examples where link removal would be justified include “references to a minor juvenile crime or to sexually explicit photographs of a “private citizen”, but not references to a business failure; an injudicious statement by a public figure, such as a politician or a corporate CEO; or to public records that have not been sealed by court order or judicial practice”. The juxtaposition of the private citizen with the public figure and the accompanying subjective assessment of the content of the information butts up against the requirements of IFLA’s own code of ethics that requires a strict commitment to neutrality and an unbiased stance regarding access.
Should libraries advocate ‘work-arounds’ that violate the spirit of the right to be forgotten rulings? For example, to what extent is it ethical for a librarian to advise library users, in national or regional contexts where a right to be forgotten regime may be in force, to search the Internet through more than one national instance of a search engine (e.g., google.ca or google.fr), with more than one search engine, and with a variety of search terms, so as to maximize their chances of locating desired information that may have been published on the Internet. We can expect competing ethical arguments, legal arguments, and other contestations about who should make the judgment.
Where they exist, fundamental rights and freedoms are beholden only to judicial oversight in accordance to constitutions, laws, values, and precedents, and are subject to an appeal process. In practice, libraries and librarians find themselves adjudicating similar issues but with a number of undefined guideposts. Is there detriment to a deceased person? What constitutes sensitive information? If a deceased public figure was diagnosed with a mental illness that is hereditary, what rights do future generations have about disclosure of that illness? Is the answer different if the illness potentially explains a questionable decision that was made by that public figure? What is public life? What is higher public good? Who defines and operationalize these terms? And who fights for the protection of historical research and researchers?
Meanwhile, IFLA’s Statement on Access to Personally Identifiable Information in Historical Records calls for personal and private raw materials to be made available once content is not capable of being used to the detriment of living persons. Going further, there is also advocacy for the compiling and reordering of data from a variety of sources to create new data that may cause an official, corporate, or criminal invasion of individual privacy. Again, more undefined guideposts. What is detriment of living persons? Posthumously, without the opportunity to confirm, deny, or explain, is the deceased entitled to any ethical considerations of their personal data? Should librarians be placed in position of supporting/advocating for action that is invasive?
The field of librarianship has built its reputation on commitments to both intellectual freedom and privacy. The field must now think deeply about whether or not freedom of expression applies in only one direction. Can freedom of expression allow a person to remove expression? We should brace for impact. Much work needs to be done, as librarianship could be facing a professional identity crisis over the emergent right to be forgotten – everywhere and anywhere.
Cheryl Trepanier, the blogposts’ co-author, is a Master of Library and Information Studies student at the University of Alberta.