The Right to be Forgotten, Given Priority But Also Balanced

정유진, 박근후, Jane Shak, 한혜원l승인2018.11.30l수정2018.11.30 11:54l366호 1면

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 The right to be forgotten is growing in popularity all around the world.  It refers to the right to maintain control over your reputation and identity on the Internet. Google has applied this policy in the European Union (EU) since 2015 and in Argentina since 2006. France’s data regulator, the Commission Nationale de l’Informatique et des Liberties (CNIL), urged Google to apply this policy to search engines all around the world. However, Google disagreed and the parties took their dispute to court. Google argued that applying it worldwide would be an infringement of jurisdiction and a danger to the freedom of expression laws of other nations.

▲ The Right to Be Forgotten is the right request that personal information is removed from online sites. (Photo from iStock)

 The concept of the right to be forgotten evolved out of a judgment handed down by the European Court of Justice (ECJ) in May 2014. The case they were ruling on began in 2010 when Spanish lawyer Mario Costeja Gonzalez sued Google and La Vanguardia (Spanish leading newspaper) for the invasion of privacy when details of his debt and compulsory sale of property problems from a 1998 article remained searchable on Google and La Vanguardia. Google and the newspaper refused to delete the information stating that what was in the article was factual and not legally problematic. The Personal Information Protection Committee concluded the article of La Vanguardia was not a legal matter and dismissed the case however, they ordered Google and Google Spain to delete the links arguing instead that the right to privacy is greater than the rights of a commercial for profit search firms and that they should remove data links when requested if the information is no longer relevant. Protesting the decision, Google appealed to the Spanish high court to have the judgment invalidated. The Spanish court requested a legal judgment from the ECJ and on May 14th, 2014 they responded. Based on a GDPR (General Data Protection Regulation), the EJC judged it was fair to delete the search results, resulting in the first formal approval of the right to be forgotten.

▲ Mario Costeja Gonzalez was the first person who gained a right to be forgotten. (Photo from Slide player)

 Today, the right to be forgotten is an issue in many countries and some advocacy groups are trying to protect individual privacy by pursuing court judgments. In the United States, the importance of privacy is growing in support and the right to be forgotten is spreading across the states. Massachusetts passed a resolution, instituting the right to be forgotten. Furthermore, California enacted its own Eraser Law on January 1, 2015. The law enables minors the right to request for deletion information they posted on any website or app while being a minor. In an attempt to develop its own right to be forgotten plan, Korea established a policy document entitled ‘Internet: One’s Own Posting Access Exclusion Request Guidelines’ on April 2016. This enforcement of guidelines makes people know a range of protection for individual privacy and the right to know at the same time.

 While many countries are now introducing the concept of a right to be forgotten, many problems concerning an outright deletion must be solved before a blanket program can be realized. The range of what is determined to be personal information and how much information the public has a right to know has yet to be determined. If the right to be forgotten is guaranteed, Google only has to find and delete the specific information users want to be removed from their online personal information. However, deleting information from the Internet is not only technically limited but also extremely troublesome for business. Applying the policy universally would violate the jurisdiction of countries to manage their own freedom of information. Currently, Google operates their homepage with servers in many countries.

▲ The right to be forgotten is a necessary right for every people. (Photo from Gizmodo)

 However, you can only apply to Google from the European Union to delete posts. In addition, as countries have different judgments about the right to be forgotten, the France request to delete posts is seen as an unfair decision that violates the rights of other countries to judge for themselves what is public or private information. There are also strong arguments that the right to be forgotten can violate to the public’s right to know. For example, if a president deleted all the articles related to his actions to cover up events he committed before he became president. There is nothing wrong with the concept of the "right to be forgotten" however, without strict application rules, it will be arbitrarily adjustable, spreading incomplete and incorrect information across the Internet.

 To learn more about the right to be forgotten laws, The Dankook Herald (DKH) conducted an interview with the Personal Information Team of Korea’s Internet Promotion Agency. They said the first consideration should be given to guaranteeing the right to be forgotten, but it is difficult to judge how far it should apply so it does not conflict with other rights. The exercise of the right to be forgotten violates the public's right to know as it can be seen as a means of censoring and deleting information and if it is abused it can be a means to clean up someone’s past by, for example, erasing records of a crime they committed.

 Accordingly, the right to be forgotten should be given priority but also balanced and harmonized with other rights, such as freedom of expression and the right to know. Moreover, the Internet Promotion Agency pointed out there is a conflict between the right to know and the right to forget. They suggested the conflict between Mario Gonzales' claim of the right to forget and Google's claim for the right to know is a perfect example. Although the European Court of Justice (ECJ) did not recognize the newspaper’s responsibility to delete its articles in May 2014, it did state that Google was responsible for managing personal information and for finding out who was responsible for the information sources. However, the court did not allow individuals to request the deletion of all search results related to them, but rather only information that was inaccurate, inappropriate or excessive. This decision was designed to balance the freedom of expression, freedom of speech, and the right to know with the right to be forgotten.

 As a result of the decision by the European Court of Justice, Google operates a review team that determines whether to delete information or not in Europe. Every country has responded differently to the right to be forgotten. In Google’s opinion, each country has the right to determine its own laws regarding the right to be forgotten through legislation and court rulings. Looking at major countries worldwide, the EU implemented the General Data Protection Regulations (GDPR) in May 2018, which included the right to require data controllers like Google, to delete irrelevant personal information when requested. Meanwhile, in February 2017, the highest court in Japan clearly rejected a right to be forgotten. The litigation was made by a man with a criminal background detailed on Google to be deleted and argued against the privacy protection over the right to know on Internet search.

 In order to smoothly introduce the right to forget in Korea, the Korea Communications Commission and the Korea Internet Promotion Agency prepared guidelines for internet self-publishing. The document was prepared after extensive consultations with the public and private sectors. The Internet is a critical part of our lives. With the development of social media, personal information is easily searchable on the internet. Therefore, it is important to strike a balance between the right to be forgotten and the right to know. Experts and individuals should take into account the real value of information and respond appropriately.


정유진, 박근후, Jane Shak, 한혜원  dankookherald@gmail.com
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