The right to be forgotten
Written by Apollonia Ioannidou*
“What happens to the memory we do not recall? Can we preserve the past itself?’’ In these words, Proust, decades ago, described his anxiety about the things which are forgotten. Besides, it is undisputed that human memory is weak and cannot remember everything. Everyone suspects that there are things that we cannot recall: Even our own self is hiding in his experiences and cannot be solid and intact. The thymic memory is deeper than the man himself. It surpasses him. Besides, people by their very nature tend to forget; remembering is the exception rather than the rule.
In the short story “Funes, the Memorious” the great Argentine writer Jorge Luis Borges describes the tragic life of a person who never forgets anything, thus highlighting the decisive importance of the processes of oblivion for a healthy and balanced human life. It is precisely this gap that technological development has come to cover, by creating a website where information is kept intact erasing the process of oblivion. The right to be forgotten was adopted on the one hand in order to defend the protection and, on the other hand, to establish control over the personal data of individuals. Although there are cases where this right has been implemented, its exact content has not yet been clarified. In addition, it is a fact that this right also conflicts with other known and established rights, creating even greater need for its analysis and clarification.
What is the right to be forgotten?
The right to oblivion is defined as “the right not to refer to past events that belong to the past and are no longer relevant”. We would think that this right applies mainly to the mass media and is understood as the right of the person not to be subject to journalistic interest and commentary on past situations in his life. This, of course, is considered to be reasonable because the opposite would increase the difficulty of reintegrating the individual into society if, for example, they were using journalistic means for committing criminal offenses. This is not an absolute right; a fair balance must be found when there is a legitimate public interest in information. Of course, it is not clear when there is a reason for legitimate interest.
The example of HIV positive women
The case of HIV-positive women in April 2012 is remarkable. During massive checks conducted by the police, women were subject to forced HIV tests, accused of being prostitutes knowing that they have HIV and wanting to transmit the HIV virus to the alleged customers. At the same time, their photos and ID details were published, while it came out that they were HIV positive as well as the prosecution against them. This publication is alleged to have had a serious impact on the data subjects, perpetuated them permanently and potentially led to the suicide of some of them.
This data was made public because, as claimed, there was a legitimate public interest in information. Of course, it is remarkable that the publication, the continuous reproduction of the topic and the over-displaying of the photographs of the women brought the opposite results, as the men who had had sex with these women were not medically examined, fearing that they would also become targeted by the media. It therefore emerges that it is unclear whether and when there is indeed a public interest requirement requiring the publication of photographs and data to inform the public.
When it comes to the right to be forgotten, it is worth mentioning that in the international literature there is a variety of terms referring to this right, the right to forget and the right to be forgotten, the right to oblivion, or the right to delete.
The digital oblivion
By digital oblivion, we mean the right of individuals to stop the processing of their personal data, but also to delete them when they are not needed for legitimate purposes. The European Commission has recently requested clarification of the concept and made an initial effort to give its own (broad and vague) definition (above). Undoubtedly, this right means that personal information of a person must be irrevocably abolished. In 2008, Jonathan Zittrain also proposed a similar concept -called reputation bankruptcy- allowing people a “new start” on the Internet. It can be obvious that when a person withdraws its consent or expresses its wish to stop the processing of its personal data, the data must be irrevocably removed and removed from the data processor’s servers. However, this affair does not fit perfectly with the legal, economic and technical reality.
The GDPR includes detailed complicated provisions, which can cover a wide range of situations. The level of protection afforded to data subjects is also to be praised, especially as regards the rights of the data subject, such as the right to oblivion, as this will contribute to the further protection of such data sets that are so sensitive as to adversely affect life of the data subject. These rights, some of which are novel, will contribute in the long run not only to improving the level of data protection for the data subjects but also to a large extent to the provision of free flow of information to promote the trust of data subjects on their security and hence the greater ease of doing business across the EU.
*Apollonia Ioannidou holds a Bachelor from the Law School of the Aristotle University of Thessaloniki and a Master from Panteion University, Faculty of Public Administration, Law, Technology and Economy track. She is currently attending a second Master in the Faculty Business for Lawyers in Alba Business School.