The Right to Privacy and to be Forgotten in an Era of Global Information

By Dr. Roffeh Ehud

Posted: 30th March 2015 09:20

One of the central questions discussed by lawmakers and academics is the right to be forgotten and how to restore control of privacy in the digital era.
 
As we discuss this issue, which includes questions regarding the right to be forgotten and the public’s right to know, the European Court has decided to implement the right of the individual to be forgotten, ruling that Google must erase all links, including legal rulings.
 
Previously, protection of the individual’s privacy primarily involved defining the boundaries of physical intrusion.  Today, from a practical standpoint, the internet has changed the rules.  Every action leaves detailed digital footprints: credit cards, mobile phones, surfing the internet or uploading photographs to social media sites. 
 
Information technology makes it possible to amass massive quantities of data thanks to search engine capabilities and data cross matching as well as technological Artificial Intelligence elements that foresee future actions.
 
Many systems exist that shares content - Facebook, WhatsApp, search engines, “cloud” technology, data base systems and more.  All throw a cloud over the right to be forgotten and privacy that is based on the physical world’s original/conservative model as opposed to the public’s right to know.
 
We know that there is awareness of the value of information for promoting social and business goals.  Some claim that the right to privacy is a cultural, artificial, liberal phenomenon that sanctifies the individual’s interests over those of society and that allows information vital to public safety to be hidden.
 
In the United Kingdom, legal financial analyst’s claim that the flow of information is vital to optimum free market conditions and that trade in information must be allowed as this brings added value to society.  According to Posner: “Protection to privacy will only be justified when it encourages the creation of new information such as when commercial secrets, patents etc., need to be protected”. 
 
Such opinions undermine the right and protection of privacy on the internet.  It is clear to all that prior to information systems and the internet, protection of privacy required limited means.  Private, sensitive information regarding health, sexual preferences, consumer habits, financial status and a criminal past usually “disappeared” from the public eye.
 
Today technology for information collection from internet surfers, mobile phone users, credit card and consumer clubs allows for the collection of data which points to individual consumer habits as well as demographic, health and socio-economic characteristics.  This makes the exposure of sensitive data possible and increases the need to protect privacy, expands the resources needed and requires that previously unprotected information be protected. 
 
From another perspective, concerning the right of the convicted person who has paid their debt to society, the question centres on the right of the individual to be forgotten and a fair balance with public interest.  This falls under the heading “The right of the public to know”. 
 
The public’s right to know is a basic, democratic right.  It includes the public’s right to question and check how their affairs are being managed.  Freedom of information, resulting from the public’s right to know, is a complex concept as it facilitates access to information resources.
 
In general, it is the duty of elected officials and their staff to provide information relating to their activities so that every citizen will be able to monitor them.  In order that the examination be valid, the public must be allowed free access to data and freedom of the press must be preserved.
 
The publics “right to know” or “freedom of information” was recognised as a basic human right and the yardstick for all other freedoms during the first meeting of the United Nations.  An integral part of the “right to know”, alongside freedom of expression is the right to demand and receive information.
 
The emphasis is on the public interest, so each case must be examined in its own right, subordinate to the question as to whether this is an issue of public interest.  Will preventing its publication as opposed to exposing it be important for the future?
 
For example: a bankrupt businessman has his bankruptcy erased after time.  But what of the trustee who embezzled public funds?  After paying his debt to society does he also have the right to be forgotten and, if so, what circumstances justify this right?
 
The publication of a public issue indicates that the public has a legitimate right to know in order to realise its civil and democratic rights.  This raises the question, at what point in time is the person convicted of a crime entitled to the right to be forgotten and what about other offences involving violence or crimes that involve public disgrace. 
 
An additional characteristic of the internet is the relative ease with which it is possible to penetrate the private area.  I have written much about this in my book “Practical Digital Evidence - Law and Technology” which examines spy programs and “Trojan Horses” that infect the internet via email and transmit highly sensitive data about our private lives from our personal computer.
 
This requires a rethinking of how we protect information and privacy.  We, and the legal system, face new, innovative challenges that technology is learning to deal with on a daily basis.  The root of the problem lays in the fact that most internet users are unaware of potential dangers to their privacy.  Thus, in most cases, they fail to identify the invasion when it occurs.  Even if they succeed in identifying it, they are unable to seek recompense due to the lack of suitable legal instruments.
 
In the legal world, protection of privacy is considered a valid social value.  Increasingly rapid technological changes require wider use of technological protection as well as legal solutions to assist the victim to gain compensation.  This will help reduce privacy issues on the internet. 
 
While writing my last book I discovered many viewpoints.  One was that damage to surfers’ privacy could create a “cooling” effect that would lead to less internet usage.  Those holding this view may be conversant with the legal world, but far from conversant in issues relating to information and technology.
 
This is analogous to the view that we should return to the era of horses and carriages because of pollution and accidents.  It is my opinion that the free flow of information over the internet is in society’s best interests and is worthy of protection even though this requires increasing efforts and resources to protect surfers’ privacy.
 
Many issues must be discussed and examined to determine if they meet the criteria of the public’s right to know or the right of the individual to be forgotten that derives from the right to privacy.  Just as the Statute of Limitations applies to the criminal’s past deeds, so a similar, legal mechanism must be implemented that forgives past actions and allows the individual to continue their lives without blemish.
 
From a civil point of view, and assuming a lack of public interest, and in light of the “immortality” of internet data, the individual’s right to define their desire for privacy must be included within the normal, accepted framework of the law.
 
Information Technology and Computers Crimes Law Expert
Phone: +972-3-908-0934, Fax:+972-3-908-0939, E-Mail: Ehud@roffeh.com, Web : www.roffeh.com

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