The FINANCIAL -- Limiting the freedom of speech? Removal of your most embarrassing moments? Or is it censorship? The slumbering debate regarding the right to be forgotten has been brought back to the front pages this year. Last May, a groundbreaking ruling by the European Court of Justice (ECJ) has created something that many now call: a right to forgotten, according to ESOMAR, the essential organisation for encouraging, advancing and elevating market research worldwide.
In the aftermath of the ECJ ruling, lawyers, interest groups, and other stakeholders have heatedly discussed the its practical implications, thus rekindling the debate on whether or not a right to be forgotten should be put in place
What are the implications of the ruling?
In order to clarify matters, the group of European Data Protection Officers, the Article 29 Working Party (A29WP), has recently released guidelines that interpret the ruling. They outline certain rules that should be followed in order to implement the right to be forgotten. One of the biggest complications of the ruling was that it placed search engines in a role that they had to decide whether or not a link should be deleted.
For market, social and opinion research arguably the biggest implication is that the A29WP stresses the Court ruling is not only aimed at search engines, but is applicable to any data controller: “The ruling is specifically addressed to generalist search engines, but that does not mean that it cannot be applied to other intermediaries. The rights may be exercised whenever the conditions established in the ruling are met.”
What is next?
Regulators in Europe are still working out how this right to be forgotten should be implemented, more and more voices are asking for a right to be forgotten that goes beyond the one enshrined in the ECJ ruling, according to ESOMAR.
For example, in the Netherlands, members of parliament from the ruling social-democratic party are calling for a data protection law that includes a right to be forgotten. However, they did not make clear how this should fit within the on-going negotiations of Europe’s General Data Protection Regulation. So whilst it might look like the plea is only for the show, it still indicates that the right to be forgotten is a politically sensitive topic.
The discussions are not just limited to Europe, as in a recent meeting of the Data Protection Authorities of Latin-American countries there was a panel discussion on the need for a right to be forgotten in Latin America.
Interestingly, in a recent case the Argentinian Supreme Court of Justice ruled that Google didn’t have to remove links to websites showing erotic and pornographic content of an ex-model. Again this shows the direction people are thinking in, even though the current legislation is not (yet?) in place.
It looks like Argentina’s neighbour Brazil is a step further and is working on a bill on data privacy that includes a right to be forgotten. Even though there is still a long way to follow before it is an actual act – and it is even questioned if it will ever become an act – it underlines the trend of legislators empowering individuals with more controls over their personal data on the Internet.
A bit further to the North, the state of California has enacted a bill that gives minors a right to remove content they have published online. So even in a country where freedom of speech is a constitutional right, steps are being taken towards empowerment with a partial equivalent to a right to be forgotten as understood in the European context.
Even in countries where privacy was traditionally approached in a different manner than in Europe, the right to be forgotten seems to have set foot. A Japanese court recently ordered Google to remove 122 links that gave the impression that a crime was committed by a citizen, when, in fact, he had no involvement with the situation. The court applied arguments similar to EU court standards, according to ESOMAR.
The bottom-line is that worldwide legislators and regulators alike are thinking and implementing forms of a right to be forgotten.
For market, social, and opinion researchers the collection and storage of personal data is of key importance, as such this new trend could have a huge impact on the samples we draw, and the research results we provide. At some point, panellists could ask to have their data removed and – not withstanding the administrative burden – this might lead to an increasing difficulty to perform reliable studies.
Depending on the outcomes of negotiations in the EU and elsewhere, exemptions foreseen for market, social, and opinion research could potentially protect researchers having to apply the right to be forgotten in circumstances where it is impractical and would severely harm the quality of research. This will be highly dependent on the conclusions of upcoming negotiations between the European Parliament and the Council of Ministers who are slowly moving closer to the final phase of negotiations, according to ESOMAR.