Remembering and Forgetting: Finding the Right Balance

Freedom of access to information depends heavily on privacy. People will not feel comfortable in seeking and obtaining the information they need if they are under surveillance.

However, free access and privacy – both of which are human rights recognised in the 1948 Universal Declaration – can also enter into conflict, for example when information concerns an individual’s private life. Search engines, by making discoverable information that would otherwise have lain undiscovered, have both helped make the Internet what it is, and accentuated this tension.

Access, Expression and Privacy: IFLA’s Approach to the Right to be Forgotten

Navigating the conflict between the right of people both to access knowledge, and to remove that which unfairly prejudices them, represents an ongoing challenge for libraries, as well as for courts, governments, and private companies.

IFLA’s Statement on the Right to be Forgotten offers some background, and sets out our approach. It underlines the interest of library users in being able to access as complete a version of the historical record as possible. It also cites the rights of information producers, who risk in preventing legally published speech from being delisted (and so effectively disappear).

Yet it also acknowledges that some information 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’.

As with any potential tension between fundamental rights, there are few easy answers. In its statement, IFLA stressed the need for judgements to be made on a transparent, case-by-case basis. It rejected both blanket refusals, and blanket acceptance of requests for delisting. In a subsequent open letter, it also underlined that such judgements would inevitably reflect local cultural preferences that would not be shared elsewhere. To this end, IFLA wanted against universal application of decisions.

Affirm or Upend: the Choice before the European Court

Two cases currently before the Court of Justice of the European Union could, however, have serious implications for the way right to be forgotten decisions are taken, and applied.

A first concerns an appeal made by four individuals against the decision of the French data protection authority not to uphold their request to have information about them delisted. The information in question concerned criminal proceedings and political beliefs, with the claimants arguing that any story containing personal information should be removed from search results on request. Such a position risks doing major damage to the freedom of the press, as well as transparency and accountability in public life.

A second opposes the same French data protection authority and Google, with the former arguing that right to be forgotten decisions should be applied globally, not just in the country where they are made. This case, the subject of IFLA’s open letter, risks seeing national courts effectively deciding what Internet users can view in other countries, regardless of the approach judges might take elsewhere.

The Need to Defend Balance

If it rejects these two cases, the Court will reaffirm the importance of taking a sensitive and thought-through approach to balancing human rights. It will also do a favour to information users and producers, as well as their own colleagues around the world.

This is not to say that the current set up is ideal – governments and regulators have doubtless been too ready to leave the task of responding to right to be forgotten requests to private companies, and transparency could be improved further. However, we can only progress on this front if the importance of finding balance is defended.