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How best can the tension between freedom of expression and the right to be forgotten be resolved?
The right to be forgotten is one of the important human rights to protect individuals’ privacy. It has been assumed that the right to be forgotten (RTBF) breaches the freedom of expression and that it justifies censorship. However, the tension between the RTBF and freedom of expression could be resolved by raising individuals’ awareness and understanding of this right and its role in promoting individuals’ personal information and their freedom on the Internet.
This paper considers how the tension between freedom of speech and the RTBF can be effectively resolved due to the growing international concern recognised as pertaining to the increasing conflict between ‘informational privacy’ and the protection of online communication in the European Union (EU) due to the European Court of Justice’s (ECJ’s) decision in Case C-131/12 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González  All ER (EC) 717. This is because the achievement of informational privacy is meant to be weighed against the recognition of freedom of expression as a right for individuals to have been identified under the EU Charter of Fundamental Rights 2000 along with the European Convention on Human Rights 1950. Therefore, the key question to be resolved in this instance through the completion of this paper is: what can be done with a view to properly balancing the achievement of informational privacy with the recognition of the freedom of expression in the EU moving forward as a result of the ECJ’s decision in Costeja Case?
When it comes to considering the literature to have arisen in this area, there has long been a significant amount of controversy regarding the practicality involved recognising a right to be forgotten as a human right internationally regarding access to information in view of current rulings’ vagueness for the purpose of looking to implement this kind of right (McNealy, 2012). The reason for this is that there has been some significant uneasiness about the effect of the recognition of the right to be forgotten upon freedom of expression as a right (Craig and de Búrca, 2015). In addition, the same is also arguably true of the way in which the right to be interacts with the right to privacy. In order to discuss this problem, the RTBF must be defined. McNealy (2012) and Koops (2012) are agreed that the RTBF means ‘the right to have information deleted after a certain time, the right to have a “clean slate,” and the right to be connected only to present information.’
Based on this definition, the RTBF is an optional right that individuals could benefit from it to delete their personal information. However, from data protection and internet quality perspective, it has been claimed if the RTBF would serve to reduce the internet’s quality effectively through a combination of censorship and the rewriting of history to suit individuals (McNealy, 2012). A supporting view of what has been mentioned, Gattuso (2015) believed that although the RTBF is seems to be a way of protecting individuals’ privacy, it is a new phase of censorship upon internet world and it has been established only to justify the censorship. Moreover, linked to McNealy point of view, Lee (2015), argued that one of the main reasons for the clash between freedom of expression and the RTBF is based on individuals’ right to ask search engines to delete specific information which will lead to reduce search controllers’ data. In other words, it could be said that there is a wide held assumption assume that the RTBF is been recognized not to protect privacy but to breach the freedom of expression and to control web pages and limit it access.
However, it has been argued that there is a need to consider the right to be forgotten in this regard is in view of the fact that the reality is that there are few other protections that have been made available against the harm that, for example, the sharing of ‘revenge porn’ can do in practice to individuals’ reputations in public (McNealy, 2012). In other words, it could be argued that the RTBF is one way of protecting individuals’ privet life, and, as an optional right, it might play a significant role in terms of reduce the negative impacts of technology by helping people, who found their personal information exposed, to live without being stigmatized (Wright,2015). Which means that the main aim pf this right is to encourage individuals to live within their societies without the harmful effect of the ‘new Yellow Press’ on their personal life (Hughes and Richards, 2015).
In regards to freedom of expression, both freedom of expression and the privacy are fundamental human rights, and none of these rights suppresses the other. However, it has been assumed that although there are numerous benefits associated with the ECJ’s decision with a view to safeguarding individuals’ interests regarding both their personal information and their image publicly, there are also several important detriments to be accounted for (Franztziou, 2014). For example, it has been claimed that the decision of the ECJ in Mario Costeja’s case will contribute to minimizethe exercise of freedom of expression as one of the most important fundamental human right. Moreover, ECJ decision could be utilised to then suit individuals’ personal interests regarding freedom of information’s recognition along with what is deemed in the public interest where the decision of the Court is applied strictly in this area of concern moving forward and it will reduce the full expression right (Franztziou, 2014). Therefore, Rushdie (2015) stressed that the freedom of expression must be absolute and protected, otherwise, it will lose its sacredness.
However, ECJ’s decision in Case of Mario Costeja has proved particularly important regarding the internet’s operation along with online governance’s future in line with the tension between freedom of expression and the RTBF (Harvard Law Review, 2014). The court clearly stated specific conditions to allow individuals to ask search engines to delete their personal information, the information must be “inadequate, irrelevant or no longer relevant” which aim to reduce the exploitation of the RTBF (the ECJ’s).
To conclude, when it comes to balancing the achievement of informational privacy with the recognition of the freedom of expression in the EU moving forward as a result of the ECJ’s decision in the Costeja Case, it is arguable the ECJ’s balancing approach to have been taken in this case could be considered to be little more than an incremental move (Lytras, 2015). Moreover, it could be state that the RTBF is not an absolute right, this is because it is also to be noted that there have also been certain limitations with regard to the application of the right to be forgotten in a jurisdiction, including the lack of ability to be able to require the removal of information that is held by companies beyond the remit of the EU (Horspool and Humphreys, 2016). The reason for this is that there is a need to understand that there is not currently a universal framework in place so as to permit individuals to then exert control over the way in which their image is presented publicly online(ibid). On the other words, although the privacy right is an important human right, the RTBF is not an idol right which seeks to suppression other fundamental human right, in particular, freedom of expression. (Factsheet on the ‘Right to be forgotten’ ruling, 2014). Based on what has been presented it could notice that there is no direct relation between the RTBF and freedom of expression (Steinbart et al, 2015). Moreover, it could be argued that both rights are important and been balanced, and the tension between two rights could be solved by rising individuals’ awareness and search companies that both rights are complementary, not opposite.
List of references
Bert-Jaap Koops, Forgetting footprints, shunning shadows: A critical analysis of the ‘right
Case C-131/12 Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González  All ER (EC) 717
Craig, P. and de Búrca, G. (2015) EU Law: Text, Cases and Materials. 6th Edition, Oxford University Press.
European Commission (2014) Factsheet on the ‘Right to be forgotten’ ruling [online] available from >http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf< [20 February 2017].
European Convention on Human Rights 1950
European Union Charter of Fundamental Rights 2000
European Union Data Protection Directive 95/46/EC
Franztziou, E. (2014) ‘Further Developments in the Right to be Forgotten: The European Court of Justice’s Judgment in Case C-131/12, Google Spain, SL, Google Inc v Agencia Espanola de Proteccion de Datos‘ Human Rights Law Review, 14(4), 761.
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Horspool, M. and Humphreys, M (2016) European Union Law. Oxford: 9th Edition, Oxford University Press.
Lee, E. (2015) The right to be forgotten v. Free speech [online] available from: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2651141> [20 February 2017].
Lytras, C. (2015) ‘Right to be Forgotten: Europe’s cutting edge weapon to fight Google?’ European Public Law: EU eJournal, 12(106).
McNealy, J. (2012) ‘The Emerging Conflict Between Newsworthiness and the Right to be Forgotten’, North Kentucky Law Review, 39(2), 119.
Richards, Neil M. and Hughes, Kirsty, The Atlantic Divide on Privacy and Speech (2015). Andrew T Kenyon (ed), Comparative Defamation and Privacy Law (Cambridge Press 2015) Available at SSRN: https://ssrn.com/abstract=2648307.
Salman Rushdie, ‘Salman Rushdie on Charlie Hebdo: Freedom of speech must be absolute’ (Mashable, 15 Jan 2015) <www.youtube.com/watch?v=dqMPyIHdgqc> [20 February 2017]
Steinbart, P.J., Truog, D., Keith, M.J. and Babb, J. (2015) ‘The right to be forgotten: Exploring consumer privacy attitudes about the final stage of the information life cycle.
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