[P2P-F] Fwd: [opennetcoalition] The Right to be Forgotten: Don't Forget the Rule of Law!

Fri Jul 18 13:40:17 CEST 2014

---------- Forwarded message ----------
From: La Quadrature du Net <contact at laquadrature.net>
Date: Thu, Jul 17, 2014 at 7:30 PM
Subject: [opennetcoalition] The Right to be Forgotten: Don't Forget the
Rule of Law!
To: opennetcoalition at laquadrature.net

Themes: RIGHT TO BE FORGOTTEN, GOOGLE, DAPIX, PERSONAL DATA, PRIVACY,
FREEDOM OF EXPRESSION, CENSORSHIP, ECJ

La Quadrature du Net – For immediate release

Permanent link:
https://www.laquadrature.net/en/the-right-to-be-forgotten-dont-forget-the-rule-of-law

The Right to be Forgotten: Don't Forget the Rule of Law!

*** Paris, 10 July 2014 — On 10 July, the Working Group on Information
Exchange and Data Protection [1] (DAPIX), in charge of the General Data
Protection Regulation, worked on the regulation's Article 17, the “Right to
be forgotten and erasure”. In this framework, the legislator must consider
the harm to freedom of expression and information, harm which the law
currently makes possible, and provide citizens with procedures that
safeguard that freedom. ***

The work of DAPIX – which is not made accessible to the public – comes
after the 13 May 2014 judgment [2] by the European Court of Justice (ECJ)
on a dispute between the Spanish Data Protection Agency and Google. This
decision clearly states that a search engine is required to comply with a
person's right to object to and erase data when the conditions as laid out
by Directive 95/46 EC are met.

While the court ruling defends the need for data protection, it fails to
address the issue of finding a balance between the protection of personal
data and the freedom of expression and information. In effect, the court
handed the responsibility to find that balance to private search engines
although they have neither the expertise nor the legitimacy to act as
judge, thus clearly undermining the rule of law. Indeed, the ruling
appeared to ignore the Advocate General's [3] warning to preserve the
freedom of expression and information. Indexation through hypertext links
for instance is a way to access and share information which is, or should
be, protected by freedom of expression.

Google responded promptly to the ECJ ruling, publishing a web form that
allows Internet users to claim their right to be forgotten, confirming
fears of seeing the principles of the Rule of Law violated. The US firm
received more than 70 000 [4] requests (1 000 a day on average) and some
high-profile media outlets, such as The Guardian [5] and the BBC [6], have
already been directly affected, with articles de-indexed. The case of the
BBC is particularly interesting as it appeared to concern Mr. Stan O'Neal,
the former boss of investment bank Merrill Lynch, who is suspected to have
made reckless investments that might have led to the collapse of the
financial giant. The request however, was found to have not come from him,
but from an Internet user who requested the de-indexation of his comment
below the article.
This case affects an important aspect of freedom of expression, that is the
responsible speech, and demonstrates the potential dangers or even abuses
posed by a badly conceived system that entrusts censorship powers to a
private body, when that power should be under the sole control of a
judicial authority.

The ECJ case law clearly demonstrates that freedom of expression is
insufficiently protected by the derogation set out in Article 9 of
Directive 95/46 EC and referred to in Article 80 of the proposal of the
European Commission, under discussion since January 2012. In fact, while
current European legislation provides for derogation for personal data
rights-holders for “journalistic purposes”, the European Court of Human
Rights handed down several judgments that exemplified to what extent
“journalistic purposes" are not always clearly defined. In the judgment Von
Hannover vs. Germany, for instance, Princess Caroline of Monaco lost when
she opposed the publication of a photo taken during family holidays. The
court failed to find a violation of the right to privacy, not because
Caroline of Monaco is a public figure, but because the images were
accompanied by an article that reported on the Prince Rainier's uncertain
health status, information considered of general interest.

The ECJ judgment and the abuses already observed in the implementation of
the right to be forgotten show that the balance between the protection of
personal data and the freedom of expression and information deserves the
greatest attention from the legislator. First of all, those shortcomings
show that exceptions to the protection of personal data provided for
freedom of expression have proven to be insufficient. Moreover, they show
to what extent the weighing of those rights require the consideration of
multiple elements that need to be processed in the framework of a fair
trial and which can never be subject to an extra-judicial and consequently
arbitrary decision.
Finally and more generally, they pose the challenge of determining if the
legislation on the protection of personal data constitutes the most
suitable vehicle for the implementation of the right to be forgotten, when
the information targeted has been disclosed to the public and falls within
the scope of freedom of expression.

“It is unacceptable that EU law allows extra-judicial censorship. Only a
fair trial can ensure that an appropriate balance of rights and interests
of each and every individual is reached. The judicial system, as the public
guardian of our freedoms, is the only entity capable of finding the right
balance between privacy and freedom of expression and information. It is
essential that citizens can, at soon as possible, assert their claims
before the court” said Jean Cattan, member of La Quadrature du Net's
Strategic Policy Committee.

“In order to reaffirm the balance between the right to data protection and
freedom of expression and information, we call upon the Council to take
into account the need to create a legal framework not only on data
protection, but also on freedom of expression and information. This matter
can not be addressed individually by the every single Member States: it
requires a coordinated and holistic approach to stop the anti-democratic
abuses that unfortunately already exist in some EU countries” concluded
Miriam Artino in charge of the legal and policy analysis at La Quadrature
du Net.

* References *

1.
http://register.consilium.europa.eu/content/out?lang=EN&typ=ENTRY&i=ADV&DOC_ID=ST%2011289%202014%20INIT

2.
http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=&pageIndex=0&part=1&mode=lst&docid=152065&occ=first&dir=&cid=411047

3. http://curia.europa.eu/juris/document/document.jsf?docid=138782&

4.
http://www.telegraph.co.uk/technology/google/10955089/There-is-no-such-thing-as-Googles-right-to-be-forgotten-minister-to-say.html

5.
http://www.theguardian.com/commentisfree/2014/jul/02/eu-right-to-be-forgotten-guardian-google

6. http://www.bbc.com/news/business-28130581

** About La Quadrature du Net **

La Quadrature du Net is an advocacy group that defends the rights and
freedoms of citizens on the Internet. More specifically, it advocates for
the adaptation of French and European legislations to respect the founding
principles of the Internet, most notably the free circulation of knowledge.

In addition to its advocacy work, the group also aims to foster a better
understanding of legislative processes among citizens. Through specific and
pertinent information and tools, La Quadrature du Net hopes to encourage
citizens' participation in the public debate on rights and freedoms in the
digital age.

La Quadrature du Net is supported by French, European and international
NGOs including the Electronic Frontier Foundation, the Open Society
Institute and Privacy International.

List of supporting organisations:
https://www.laquadrature.net/en/they-support-la-quadrature-du-net

** Press contact and press room **

contact at laquadrature.net, +33 (0) 972 294 426

https://www.laquadrature.net/en/press-room

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