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< | Does the Law make the Internet "dumber" than it is? | >
> | The Right to be Forgotten vs. Free Speech | | | | |
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< | -- By EricN - 04 Oct 2019 | >
> | -- By EricN - 04 Jan 2020
In recent years regulators all over the world, especially in the European Union (EU), have increased their efforts to enact data privacy laws. Some would say, the right to be forgotten marked the end of free speech in the modern internet and others endorse the necessity of strong internet privacy laws. Although I believe there are profound reasons for a right to be forgotten, it undoubtedly competes with the fundamental, hard-earned law of free speech. I therefore want to lay out the idea behind this new legal concept of a right to be forgotten, in order to reach a verdict if it prevents or maybe supplements free speech. | | |
Privacy Legislation | |
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< | In recent years regulators all over the world, especially in the European Union (EU) have increased their efforts to enact data privacy laws. While some would say, the "Right to be Forgotten" marked the end of free speech and the modern internet, others endorse the necessity of strong internet privacy laws. Do the current legal proceedings make the internet "dumber" than it technically is? | | |
What does this question mean? It's utterly obscure to the reader who doesn't already know what you think. That discourages the reader from pressing on. | | | In the US, the Cambridge Analytica scandal effectuated various changes in the US data privacy law landscapes, including the California Consumer Privacy Act (CCPA), which is currently the most comprehensive data privacy law to be enacted in the US (The Act goes into force on January 1, 2020). Some call this shift in public awareness towards data privacy legislation as the "great privacy awakening" (For further information: Internet Health Report 2019, Mozilla). In 2018, the number of Americans who think Tech companies need more regulation and should be made liable for breaches of their user’s data privacy rose to 83 % (from 49 % in 2017), as a recent national representative survey showed (For further information: Americans want tougher rules for big tech amid privacy scandals, The Guardian). | |
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< | CCPA
It will be interesting to observe the consequences of the CCPA, which was designed to enhance the privacy rights of Californians. Although it is commonly thought of as a similar version of the GDPR, it differentiates itself from its European counterpart in several questions and of course, the Act is not uncontroversial (For further information: Technology & Marketing Law Blog, Eric Goldman).
With the "Right to Erasure", the CCPA will contain the Californian interpretation of the RTBF and the law grants affected consumers the right to request deletion of their personal information from any company subject to the CCPA. As its European counterpart, the right does not apply unlimited and there are certain limitations (A list of limitations can be found here: Data Protection Report, Northon Rose Fulbright). Yet, it can be expected that Californian companies will face similar difficulties as GDPR affected companies, in actually complying with such deletion requests of affected consumers / data subjects. This can pose various operational challenges in actually deleting all personal data of a requestor (just think about complex IT architectures with automated back-up hard drives, cloud storages, etc.). | >
> | The Tension | | | | |
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< | Judicial Application | | | | |
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> | The crux is that the question cannot be answered in complete: free speech is utmost important, yet there are definitely certain circumstances where the RTBF is of great importance to affected people and where it actually is deliberating. However, the RTBF without any restrictions might not be the perfect solution for the problem. Although I realize it is hardly viable, there should be an element of consideration implemented when it comes to deletion of information. The GDPR for example foresees an exception for deletion requests where the processing of the data is necessary for exercising the right of freedom of expression (Art. 17 para. 3 (a) GDPR), yet the balancing of the involved interests is still up for discussion and two recent decisions of European courts illustrate a certain anticipation of how courts decide. | | | | |
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< | Europe
In recent weeks, two noteworthy cases illustrate how the EU is still determining the scope of the RTBF and both cases affect US tech giants. | | | On September 24, 2019, the ECJ limited the geographical reach of the RTBF. The French privacy regulator fined Google after it rejected a directive to globally remove search results which contain defaming information about a person. The ECJ then held that the internet is a global network without borders, yet numerous third States do not recognize the RTBF and no country should be able to impose rules on citizens of another country. The ECJ concluded that there is no obligation under EU Law for search engines to carry out de-listing requests outside the EU, or as the Court remarkably said: "The right to protection of personal data is not an absolute right" and so the RTBF does not apply outside of the EU (For further information: Google LLC v Commission nationale de l’informatique et des libertés (CNIL)).
Only two weeks later, however, the same Court held on October 3, 2019, that Facebook can be forced to delete content worldwide. This judgement was made after an Austrian politician sued Facebook Ireland Ltd., to remove comments about her, which an Austrian Court determined to be defamatory, on Facebook. The Court held that a EU member state court can order a host provider to remove information which previously was declared to be unlawful worldwide within the framework of the relevant international law. This decision could let objective viewers believe that the EU is nonetheless trying to implement the RTBF as a global regulatory internet standard and it has to be seen, how this decision will heat up the discussion of free speech versus privacy. | |
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< | USA | >
> | Conclusion | | | | |
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< | A recent case demonstrated why the RTBF does not (yet) work under current US Law. In Yury Mosha v. Yandex Inc., S.D.N.Y.,18 Civ. 5444 (ER) Mosha claimed that the Russian search engine Yandex.ru would defame him and after an unsuccessful trial in Russia, Mosha filed a claim in New York against the US subsidiary of Yandex, Inc. The District Court granted the defendant’s motion to dismiss, based on the immunity of Yandex, Inc. under the Communications Decency Act ("CDA"), 47 U.S.C. § 230, holding that internet search providers are interactive computer services and as such, may rely on the immunity granted under the CDA. It will be interesting to see if this line of argumentation may be upheld in California in 2020. | >
> | When a convicted murderer can have his name removed from online search results (https://www.bbc.com/news/world-europe-50579297) and courts weigh his right to privacy higher than free speech and press freedom, then I would argue the RTBF poses a danger to free speech. Looking at the US, a recent case demonstrated why the RTBF does not (yet) work under current US Law. In Yury Mosha v. Yandex Inc., S.D.N.Y.,18 Civ. 5444 (ER) Mosha claimed that the Russian search engine Yandex.ru would defame him and after an unsuccessful trial in Russia, Mosha filed a claim in New York against the US subsidiary of Yandex, Inc. The District Court granted the defendant’s motion to dismiss, based on the immunity of Yandex, Inc. under the Communications Decency Act ("CDA"), 47 U.S.C. § 230, holding that internet search providers are interactive computer services and as such, may rely on the immunity granted under the CDA. It will be interesting to see if this line of argumentation may be upheld in California in 2020. | | |
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