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Timing the Right to Be Forgotten
A study into “time” as a factor in deciding about retention or
erasure of data
Paulan Korenhof, Jef Ausloos, Ivan Szekely, Meg Ambrose, Giovanni Sartor, Ronald
Leenes
email.com
Abstract. The so-called “Right to Be Forgotten or Erasure” (RTBF), article 17
of the proposed General Data Protection Regulation, provides individuals with a
means to oppose the often persistent digital memory of the Web. Because digi-
tal information technologies affect the accessibility of information over time
ànd time plays a fundamental role in biological forgetting, ‘time’ is a factor that
should play a pivotal role in the RTBF. This paper explores the roles that ‘time’
plays and could play in decisions regarding the retention or erasure of data.
Two roles are identified: (1) ‘time’ as the marker of a discrete moment where
the grounds for retention no longer hold and ‘forgetting’ of the data should fol-
low, (2) ‘time’ as a weight in a balance of interests, as a factor adding or remov-
ing weight to the request to ‘forget’ personal information or its opposing inter-
est, resulting in tipping the balance in either direction. The paper elaborates on
these two roles from different perspectives and highlights the importance of the
second role at the same time making clear that this role is ill understood.
Keywords. The Right to Be Forgotten, Data Protection, Privacy, Internet,
Time.
1 Introduction
Tremendous advancements in information technologies have made it possible to
capture, store and process vast amounts of data at marginal costs and in ways previ-
ously unimaginable.
1
A large portion of this data relates to specific individuals and its
use might have important (negative or positive) consequences for them. Moreover, the
pervasiveness of modern communication technologies – and the Internet in particular
– have given a global scope to these potential effects. Space and time are two key
factors in the realm of increased accessibility of data, with significant different roles
in the new digital world versus the old analogue world. Obviously space and time are
related; data accessible from anywhere but for no amount of time would reach no
audience. The same goes for data that are accessible forever, but from nowhere. The
“digital turn” implies an increased reach of information in both space and time, while
1
Cf. generally Mayer-Schönberger 2009.
information generally has a different value depending on the time and place.
2
This
‘disconnect’ increasingly causes issues. In this article we explore the extended reach
of information in one of these two dimensions: time
3
. Time as a relevant factor in
extending the reach of information was expressed by Rosen et al. in their article with
the telling title “The Web Means the End Of Forgetting”
4
and Mayer-Schönberger in
his “Delete: the virtue of forgetting in the digital age”
5
. At the core of concerns in this
domain is the (growing?) need of individuals to have certain information taken down.
Or to use the controversial term that has taken central stage in the debate, to be “for-
gotten” – a term often used to express individuals’ desires to be free of information
that already exists in the public domain, but that “with the passing of time becomes
decontextualized, distorted, outdated, no longer truthful (but not necessarily false)”.
6
The European Union is engaged in trying to deal with these concerns by develop-
ing regulation that enables individuals to oppose the persistent digital memory and
giving them a right to be forgotten (RTBF). Most notably this right – currently still
under construction – is enshrined in the so-called “Right to Be Forgotten or Erasure”,
article 17 in the General Data Protection Regulation (GDPR) proposal.
The introduction of the RTBF has been the topic of much – heated – debate. Rosen
already dubbed the right “the biggest threat to free speech on the Internet in the com-
ing decade”.
7
However, next to numerous opponents, there are also many that under-
line the social necessity of a RTBF to limit the often persistent digital, and especially
online accessible, memory.
8
The debate seems deadlocked with the adversaries taking
almost absolute positions on the spectrum of forgetting versus remembering. Taking
‘time’ into consideration may allow for a more nuanced assessment. For instance, is it
in the interest of freedom of expression and the marketplace of ideas to keep the opin-
ion of a 14-year old recalcitrant adolescent in a school paper publicly accessible
online for 10-years? What about 40-years? We can think of circumstances where we
would answer such questions with ‘yes’, but equally important, we can think of cir-
cumstances where we would answer such questions with ‘no’. Additionally, the an-
swer that we as a society give to such questions may in return affect the interests at
stake; if we decide that no utterance can ever be ‘forgotten’ debates may be stifled or
curbed for fear of future consequences later on in life? Such considerations show that
a pivotal role may be given to “time” in the balance of interests in cases where indi-
viduals aim to legally challenge the persistent online memory. The main question of
this paper is thus:
what role can “time” play in the decisions and the balancing of different in-
terests with regard to the retaining or removal of online available information?
This question was the underlying question of the “Timing the Right to Be Forgot-
ten” panel at the 2014 Computers, Privacy and Data Protection conference in Brus-
2
Cf. Ambrose 2012.
3
As mentioned, time and space are related, but we will primarily focus on time.
4
Rosen 2010.
5
Mayer-Schönberger 2009.
6
De Andrade 2012, p. 127.
7
Rosen 2012.
8
Cf. De Andrade 2012, Mayer-Schonberger 2009.
sels. The participants of this panel have teamed up to explore an answer to this ques-
tion. This paper provides an analysis from several standpoints. After a brief introduc-
tion in the way we use digital information sources like the Web from an applied so-
cio-philosophical perspective, we explore ‘time’ in law, followed by an analysis of
discrete decision points in data processing and the data life cycle. Next we discuss
how different interests can be balanced in time. The paper concludes with a reflection
the insights obtained from the different angles. As the paper discusses different per-
spectives provided by scholars from different disciplines, the style of the paper is
hybrid, which hopefully does not distract the reader from the message of the paper,
which is that ‘time’ is an essential element to understand and manage information
persistence in the digital world.
2 The external transactive memory and forgetting
9
Before we explore time as a factor in the balancing of interests regarding data pro-
cessing, we first need a model of (digital) memory and what ‘forgetting’ means in this
context.
2.1 Memory, external memory and transactive memory
Information is key to our functioning in the world – in relation to others and our
environment. The ability to remember is a very important asset in this respect and the
complex concept of ‘memory’ has been topic of much research and debate in various
academic fields.
10
The overarching similarity in these diverse fields lies in three pro-
cess elements:
“Any memory system – whether physical, electronic, or human – requires three
things, the capacity to encode, or enter information into the system, the capacity to
store it, and – subsequently – the capacity to retrieve it.”
11
These three elements are intertwined: the way in which information is encoded de-
termines what and how information is stored and this will in return determine what
can be retrieved.
12
Because the biological brain is perceptive to failures in its memory capacities and
has limited storage capabilities, people make use of external tools to enhance their
cognitive abilities and minimize their weaknesses.
13
Such tools can be used to alter,
combine, transform and store information in ways that would be too time-consuming
or complex to perform with the “naked” brain.
14
An all-familiar example external
9
The line of thought described in this section has been explored previously in Korenhof 2014.
10
Sutton 2012.
11
Anderson et al. 2009, p. 5.
12
Anderson et al. 2009, p. 5.
13
Clark 2003, p. 74-75.
14
Clark 2003, p. 78.
memory enhancement is an agenda, which complements the brain's limited memory
capacity by diminishing the amount of information that it needs to process and store.
Instead of remembering all our appointments, we only need to remember where our
agenda is.
The praxis of external memory stores is heavily shaped by technology. The tech-
nology adopted determines what (written words, drawn pictures, photo's, voice sam-
ples) we can store, how much we can store (amount of books you can store in a house
versus digital files on a personal computer) and how easily we can find it (searching
manually versus search with a computer program in files). The “digital turn” has dra-
matically affected the praxis and practical limits of external memory stores changed;
we store increasingly more,
15
can transport the information easier
16
and copy and
multiply it flawlessly.
17
When publicly available on the Web, information is generally
easily accessible to everyone with access to the right device and infrastructure, both
of which are increasingly common. Search engines, apps and widgets effectively fa-
cilitate the retrieval of online information if we don’t know where it is already.
18
With
the “digital turn” of information, our abilities to encode, store and retrieve infor-
mation have thus expanded.
The Web as an external memory has an important characteristic not shared with
other (private) external memories such as paper-based agendas: because everyone can
potentially add and retrieve information to and from the Web, it is a shared and so-
cially interactive memory, a “transactive memory system”.
19
Transactive memory
concerns the structuring and processing of information within a group.
20
It is “a set of
individual memory systems in combination with the communication that takes place
among individuals”.
21
In the transactive memory, the memory process elements of
encoding, storage and retrieval are recognized to have “both internal and external
manifestations”.
22
The encoding of information within a transactive memory is done
by individual agents or their external memory stores contributing to the shared
memory. Individuals can retrieve information by consulting all available sources in
the transactive memory: their own and other individuals internal and external memory
sources.
23
Using a transactive memory allows individuals to significantly enhance
their (external) memory without the need for encoding and storing of all information
themselves.
24
A transactive memory shapes what a group of people remember and
influences what they individually take to be true.
25
The Web is used as such a
transactive memory and “has become a primary form of external or transactive
15
Mayer-Schönberger 2009, p. 67.
16
Van den Berg and Leenes 2010, p. 1112.
17
Vafopoulos 2012, p. 411.
18
Sparrow et al. 2011, p. 776.
19
Sparrow et al. 2011.
20
Wegner 1986, p. 185.
21
Wegner 1986, p. 186.
22
Wegner 1986, p. 188.
23
Wegner 1986, p. 188.
24
Wegner 1986, p. 188.
25
Wegner 1986, p. 191.
memory, where information is stored collectively outside ourselves”.
26
It thus shapes
the manner in which we remember, and what we remember.
2.2 Forgetting and the external transactive memory
Humans have always used external memories, but with the adoption of information
technologies, the mechanics of ‘remembering’ and ‘forgetting’ in external memory
process seem to have changed drastically.
Forgetting is a term generally used in relation to the biological brain and is
“fail[ure] to remember”,
27
a glitch somewhere in the memory process that either tem-
porarily or permanently fails to retrieve specific information. It can be the result of
failures in any of the three memory process elements, partial failures, temporarily
failures or of failures in the elements combined.
28
Forgetting in the human brain arises under de combination of various factors. Sim-
plified, three main factors play a role in the occurrence of forgetting with regard to a
specific piece of information: the passing of time, the meaning of the information and
the regularity with which the information is used.
29
Meaningful and repeatedly used
information (re)enforce the persistence of the information in memory.
30
The passing
of time weakens the strength of the memory of a specific piece of information.
31
Meaning, time and use thus jointly influence the persistence of information in
memory, but each can also strengthen or weaken the others’ influence. For instance,
information often loses value for us over time,
32
which increases the chance that it
will be forgotten eventually.
Despite the fact that ‘forgetting’ is generally only used in relation to human agents,
we think it is worthwhile to try and apply the term to the praxis of external memory
stores. When regarding the concept of “forgetting” as a glitch in the memory process
purely on the process level, the term can also be applied to the external memory pro-
cess, in which individuals encode and store information in an external memory store,
and retrieve the information when they need it. Extending the term “forgetting” to the
process as such can help us clarify and highlight the changes in the memory process
mechanics that are caused by the praxis of external memory stores and provide guid-
ance on how to implement “forgetting” in the digital external memory.
In external memories before the “digital turn”, “forgetting” usually occurred as the
result of a necessary “forgetting-by-selection” decision because of storage space re-
strictions over time (i.e. one can fit only so much books in a library). People had to
select what to keep —to externally “remember”—, and what to eliminate from the
storage space.
33
The praxis of external memory stores thus led from a human memory
store that forgot-by-default, to external memory stores that generally remembered-by-
26
Sparrow et al. 2011, p. 776.
27
Concise Oxford English Dictionary, 11th Edition.
28
Dudai 2004, p. 100-101.
29
Dudai 2004, p. 100/101.
30
Dudai 2004, p. 100- 101.
31
Dudai 2004, p. 100- 101.
32
Ambrose 2012, p. 390.
33
Szekely 2012, p. 349.
default and required active forgetting-by-selection to make room for the most relevant
information. With the “digital turn”, this necessity to forget-by-selection drastically
diminished, due to the continuous decrease in cost of storage space for digitally en-
coded information. As a matter of fact, the necessity for forgetting-by-selection has
become so void, that often it is cheaper to get new or more storage space than to
spend the effort of erasing information. As some authors have already explored,
34
this
led to a shift in the long-standing paradigm of human history: today remembering is
natural, while forgetting has become an expensive and technically complicated busi-
ness. This is mostly true for long-term declarative memory, both individual and col-
lective, and more specifically, of data or document-based memory. But above else,
this paradigm shift has relevance in the domain of digital memory, or at least comput-
er-assisted memory.
And as was discussed in the introduction, there is growing opposition of individu-
als to “remembering-by-default” in certain circumstances and a call for some form of
“forgetting” in external memories. The difficulty generally of individual needs to “be
forgotten” by an external memory store, is that it is generally not their external
memory store, but a transactive one, in many occasions the Web. Trying to incorpo-
rate a form of “forgetting” in the online transactive memory is a challenge because it
is not the memory of a single agent that is at stake, but the external memory of multi-
ple agents, each with potentially different interests in erasure or retention. The ques-
tion is then how to balance the interests of the different agents in the decision to “for-
get” information in the external transactive digital memory. The way “meaning”,
“use” and “time” affect forgetting in the human brain may provide some guidance
here.
“Time” is a factor that correlates with “forgetting” in the biological brain, and
therefore an interesting one if we are interested in facilitating “forgetting” in the digi-
tal transactive memory. Time is a fundamental dimension of the life of individuals,
families, social groups and society as a whole, up to the survival of human culture. It
is a fundamental dimension of memory and forgetting, too. Resources are freed up
over time (potentially to be re-used
35
) and social needs to forgive and forget also take
time into consideration. ‘Meaning’ and ‘use’ limit the memory decay ‘naturally’ re-
sulting from time lapse. The “digital turn” has undermined the technical need to for-
get – less so the social need –, and in its wake significantly extended the reach (in
time) of information.
2.3 Nuancing persistence
Although the “[t]he Internet isn’t written in pencil, it’s written in ink”
36
, and thus
information permanence seems the rule, it is important to nuance this. Information
34
For example, Mayer-Schönberger (2009) who was not the first but perhaps the most influen-
tial in realizing these changes, or Szekely (2012) who extended the framework of scholarly
analysis to literary dimensions.
35
Hadziselimovic et al. 2014.
36
THE SOCIAL NETWORK (Columbia Pictures 2010), quoted in Ambrose 2012.
itself is not permanent, no matter the format. Digital information is particularly frag-
ile. It requires a great deal of upkeep. Digital content is at the mercy of media and
hardware errors, software failures, communication channel errors, network service
failures, component obsolescence, operator errors, natural disasters, internal and ex-
ternal attacks, and economic and organizational failures.
37
This fragility has been the
focus of digital preservationists who are deeply concerned about the “digital dark
ages,”
38
“electronic crisis,”
39
and the “death of the digit.”
40
Studies find various rates
of decay, but they are dramatic ranging from rapid rates showing significant loss in
days to about 10-15% lasting a few years.
41
“If we are to understand the dynamics of
the Web as a repository of knowledge and culture, we must monitor the way in which
that knowledge and culture is managed. We find that the Web in its ‘native form’ is a
far too transitory medium,” stated Wallace Koehler while insisting that initiatives like
Internet Archive are vital to cultural preservation.
42
Having said this, it is apt to explore whether or not the ‘natural’ decay observed in
these studies is sufficient to regulate in the name of permanence. Content persistence
in fact proves that the Internet is a lazy historian with no principled practices of pre-
serving or protecting knowledge.
43
If online information is not more thoughtfully
maintained as a collection, neither goals of privacy nor preservation will be met in the
future. Tinkering about mechanisms to augment the external transitive memory fits
this aim.
Psychologists distinguish between short, intermediate and long-term memory, in-
ternal and external memory, visual, auditory and conceptual memory, procedural and
declarative memory. Relating to these and their different (temporal) characteristics, it
is possible to distinguish short, intermediate and long-term forgetting, oblivion, or
even amnesia alike. These types of memory and forgetting have their own characteris-
tic time periods and even their names sometimes reflect the length of their sphere of
interpretation. If this is true, why not speak about computer-assisted forgetting?
44
.
If we want to – or question whether we should – limit the reach of the digital
memory we may need to re-introduce ‘time’ into the equation (of time-meaning-use).
A primary question here is whether time plays an independent role, or whether it af-
fects a balance of interests. We will explore this question from different perspectives,
starting with the law because of its importance in regulating behaviour, also in the
domain of data processing.
37
Gladney 2007, p. 10.
38
MacLean et al. 1998.
39
Rosenzweig 2011.
40
Feeney 1999.
41
Ambrose 2013, citing:
42
Koehler 2004.
43
Ambrose 2012.
44
In fact there exist computer-assisted forgetting tools and technologies, from specific Privacy
Enhancing Technologies (PETs) to user-centric identity management systems, however,
their capacity and spheres of use differ greatly and they are far from being commonly used.
3 Time in Law
It may not come as a surprise that – from a legal point of view – “time” is a partic-
ularly hard to grasp concept in assessing the so-called RTBF. This section attempts to
briefly set out the weight and role time has in evaluating a person’s right to have cer-
tain information taken down. Rather than giving a detailed analysis of the relevant
legal provisions and case-law, it provides a tour d’horizon in a European context.
3.1 Removing Online Content
With the increasing desire of individuals to have certain information taken down,
people have reached for technological tools and pressed corporations to provide them
with concrete deletion options. In many situations, however, these solutions do not
result in satisfactory outcomes for the individuals involved and as a result, they are
turning to the law to find relief. Although privacy and data protection law might seem
the most straightforward legal frameworks applicable in this context, many other legal
rule-sets could be relevant (i.e. defamation law, intellectual property law, general tort
law, etc.). For the purposes of this section, we focus on the role of time in the context
of privacy and data protection law in particular. Not only do these constitute the most
relevant legal frameworks with regard to the issues dealt with in this Chapter, but also
do most of the other legal regimes have specific criteria in place for assessing the
legitimacy of a takedown-request (e.g. wrongfulness, public dissemination, harmful
intent, etc.) in which time plays a lesser role.
3.2 Terminological issues
The term “Right to be Forgotten” is particularly used in the context of privacy and
data protection law. It may not come as a surprise that the concept is subject to differ-
ent interpretations, which – in turn – have resulted in quite some controversy.
45
With-
out going into details on this, it is worth highlighting one key distinction to be made.
The right can either be grounded on the general right to privacy – in which case it can
be referred to as the right to oblivion – or it can be based on the data protection
framework – in which case it can be referred to as the right to erasure. Time plays a
role in both situations.
Role of time in the general to privacy
If you have seen the movie Men in Black (1997), you should be familiar with the
“neuralizer”. This is a device the “men in black” use to eradicate (short-term) memory
of witnesses to alien incidents. It is not hard to see how the right to oblivion seems to
be the translation of this technical tool into law. Its terminology suggests an obliga-
tion on third parties to remove certain information from their memory. Courts have
45
Ambrose & Ausloos, 2013.
recognized a ‘right to be forgotten’ based on the general right to privacy – inscribed in
the ECHR (art. 8) and Charter of Fundamental Rights (art. 7) – in a number of cases.
46
Looking at European case law in particular, the right has mostly been applied in
order to shield individuals from being confronted with certain aspects of their past in
a disproportionate, unfair or unreasonable way. The textbook example undoubtedly is
the ex-convict who sees his/her name popping up in the media years after the facts.
This has become particularly relevant in the context of the digitization of newspaper
archives. Quite recently, the European Court of Human Rights (ECtHR) has called
attention to the concerns related to online availability of more and more information.
In Delfi AS v Estonia, the Court stated that “the spread of the internet and the possibil-
ity … that information once made public will remain public and circulate forever,
calls for caution.”
47
In Österreichischer Rundfunk v Austria, the ECtHR specified that
the lapse of time since a conviction and release constitutes an important element in
weighing an individual’s privacy interests over the public’s interest in publication
(n˚68).
48
It may come as a surprise that the ECtHR has also applied the time-element
as an argument against the RTBF. In Editions Plon v. France, the heirs of former
French President François Mitterand had opposed to the publication of a book by the
ex-President’s private doctor. The ECtHR ruled, however, that “the more time that
elapsed, the more the public interest in discussion of the history of President Mitter-
rand’s two terms of office prevailed over the requirements of protecting the Presi-
dent’s rights with regard to medical confidentiality.”
In short, the right to oblivion is primarily invoked in situations where an indivi-
dual’s personal life is publicly exposed (usually by the media). A careful balancing
exercise with other fundamental rights will therefore be imperative. In making this
balance, time will often play a determinative role, though not necessarily in favor of
removing the information.
Role of time in data protection law
The application of the Right to Erasure – vested in the European data protection
framework – seems much more straightforward, at least in theory. According to Arti-
cle 12 of the Data Protection Directive 95/46 (DPD), data subjects have “the right to
obtain from the controller [...] the erasure of data the processing of which does not
comply with the provisions of this Directive”.
For the purposes of this section, the right to erasure in article 12 can be summa-
rized as being applicable whenever the controller either fails to fulfill its obligations
or ignores data subjects’ rights. Keeping in mind the main topic of this chapter, three
46
Graux, Ausloos & Valcke, 2012.
47
N92: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-126635.
Husovec 2014, p. 108–109.
48
Eventually, it was decided though, that the national court had given too much weight to the
time-element. n˚69 “The domestic courts attached great weight to the time-element, in par-
ticular to the long lapse of time since Mr S.'s conviction, but did not pay any particular at-
tention to the fact that only a few weeks had elapsed since his release.”
elements in the data protection framework are relevant here: (a) the need for a legiti-
mate ground, (b) the purpose limitation principle and (c) the data subject’s right to
object.
First of all, the processing activities will permanently have to be tested against the
legitimacy grounds in article 7 of the Directive. Particularly the first and last justifica-
tions are interesting in this regard. When the processing activities are based on the
data subject’s consent, the controller will have to stop further processing upon with-
drawal of consent. The Article 29 Working Party has specified, however, that such
withdrawal can only be exercised for the future (Opinion 15/2011, 33). Only when the
controller cannot present any other legitimate ground for further processing, can the
subject request erasure of the data. The last legitimacy ground, however, constitutes
an incredibly wide safety net controllers can fall back on. According to this ground,
personal data can be processed for as long as is “necessary for the purposes of the
legitimate interests pursued by the controller (or by the third party or parties to whom
the data are disclosed), except where such interests are overridden by the interests for
fundamental rights and freedoms of the data subject”. It goes without saying that this
“balance of interests” gives a lot of leeway to the controller and is hard to contest by
data subjects. Nevertheless, this balance might oscillate over time, at least in theory.
Secondly, the purpose specification principle (article 6) constitutes some sort of
benchmark against which the processing of personal data will be assessed over time.
Besides having to be specific and explicit, the purpose also has to be legitimate.
Whereas the specificity and explicit nature will normally only be relevant at the start,
the legitimacy requirement will be more subject to the passing of time. In its Opinion
on Purpose Limitation (03/2013, pages 19-20), the Article 29 Working Party specified
that the processing must – at all different stages and at all times – be based on at least
one of the legal grounds. This requirement, the Opinion continues, goes beyond the
scope of the legitimacy grounds in article 7 and implies the purposes for processing
“must be in accordance with all provisions of applicable data protection law, as well
as other applicable laws (e.g. employment law, contract law, consumer protection
law, etc.).”
49
It concludes by saying that “the legitimacy of a given purpose can also
change over time, depending on scientific and technological developments, and
changes in society and cultural attitudes.” On top of the potentially wavering nature of
the legitimacy requirement, the personal data itself might also become unnecessary,
irrelevant or inadequate to achieve the original (or a compatible) purpose.
Thirdly, in principle the right to erasure can also be invoked when the data subject
has successfully exercised his/her right to object. But, in order to do so, the subject
49
The Working Party further elaborates that legitimacy also has to be tested against: “all forms
of written and common law, primary and secondary legislation, municipal decrees, judicial
precedents, constitutional principles, fundamental rights, other legal principles, as well as ju-
risprudence, as such 'law' would be interpreted and taken into account by competent courts.
Within the confines of law, other elements such as customs, codes of conduct, codes of eth-
ics, contractual arrangements, and the general context and facts of the case, may also be
considered when determining whether a particular purpose is legitimate. This will include
the nature of the underlying relationship between the controller and the data subjects,
whether it be commercial or otherwise.”
will have to put forward compelling and legitimate grounds. In this regard, ‘time’ can
both be such a ground, as well as an underlying scale upon which the other grounds
are projected. Put differently, the arguments for or against the right to object can
evolve over time as well.
Although the data protection directive has been the subject of several cases before
the Court of Justice of the European Union (CJEU) already, the right to erasure has
never really been dealt with directly until the so-called Google Spain case.
50
In this
case, the CJEU was asked whether or not search engines fall within the DPD’s (mate-
rial and personal) scope of application and/or whether they are subject to the right to
erasure with regard to the personal data they refer to. According to the original plain-
tiff in this case, some of the Google Search results when entering his name are not
relevant anymore (i.e. links to an article on his bankruptcy proceedings). The
Audiencia Nacional (referring court) acknowledged that today, it is possible to create
very detailed personal profiles in just a couple of clicks, with information that used to
be difficult to find. The lack of territorial and temporal limitations to the dissemina-
tion of information constitutes a danger to the protection of personal data. The nation-
al Court further specified that originally lawful and accurate personal data may be-
come outdated overtime in the face of new events. Some of this information might
actually generate social, professional or personal harm to the individual concerned.
Indeed, one might claim that the impact of search engines (among others) is such that
individuals are perpetually overshadowed by certain past events/facts that might not
accurately – or in a proportionate way – represent their current capabilities. It could
even be argued that with the right search terms, practical obscurity on the Internet is a
myth.
Concerns over perpetual storage of (personal) data have also manifested them-
selves in the context of another legal framework before the CJEU. In DRI &
Seitlinger
51
, the Advocate General specifically stated that the Data Retention Di-
rective is incompatible with the Charter of Fundamental Rights. One of the reasons
put forward was that the Directive does not respect the principle of proportionality, in
requiring data retention for up to two years. Although the Directive’s ultimate objec-
50
Still pending at the time of writing. This case involved a Spanish individual that had been
subject to bankruptcy proceedings in the nineties. Spanish law required a local newspaper
(LaVanguardia) to publish information on the public auction resulting from the bankruptcy.
Upon digitizing its archive, links to this information popped up in Google Search results
when entering the individual’s name. The individual addressed himself to the Spanish data
protection authority, requesting the removal of the article and search results. The DPA de-
nied the request vis-à-vis the newspaper (as it had a legal obligation to publish the infor-
mation in the first place) but did order Google to remove the link from its search results. The
search giant appealed and the Audiencia Nacional referred some of the questions raised to
the CJEU.
51
Opinion of Advocate General CRUZ VILLALÓN delivered on 12 December 2013 in Case
C‑293/12 & Case C‑594/12,
http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=&pageIndex=0
&part=1&mode=lst&docid=145562&occ=first&dir=&cid=218559.
tive is perfectly legitimate, the AG claimed, there is no justification for extending the
data retention period anything beyond one year.
3.3 Two roles ‘time’ can fulfill in law
It is hard to draw clear conclusions regarding the role of ‘time’ vis-à-vis the RTBF
in a privacy or data protection context. What can be said, however, is that the concept
seems to play two parts. Either, and commonly, time is a factor adding (or removing)
weight to the request to removing personal information or its opposing interest (e.g.,
public interest), resulting in tipping the balance in either direction. Generally, the
older information is, the less valuable retaining it is. The second role time can play is
as the marker of a discrete moment where the grounds for retention no longer hold
and erasure of the data should follow. Passing an agreed retention period for data is a
case in point. Sometimes, however, it is not so much time itself that causes the flip,
but rather some other condition being met that can be expressed as happening some-
time. This is particularly the case where the purpose limitation principle is at play.
Once the stated purpose is reached, there is no longer a legitimate ground for data
retention, and hence from that moment in time onwards, data retention is no longer
legitimate. This second role of time (time as boundary marker) especially comes to
the fore in article 17 of the proposed GDPR. In the Commission’s proposal, data sub-
jects will be able to invoke the right when the data are “no longer necessary in rela-
tion to the purposes for which they were collected/processed” () or when the prede-
fined storage period has expired.
Before we discuss the former role of time (as a weight in a balance of interests), we
first explore time in its role as discrete tipping point in the discussion whether person-
al data should be retained or deleted.
4 Law, time and the use of information: specific points in data
processing
In this section we explore the life cycle of the creation and use of data and infor-
mation and point out situations in which the decision whether or not to cre-
ate/retain/delete data is relatively straightforward. We identify specific points in data
processing, which also denote specific points or periods in time, where enforcing of
RTBF is reasonable or even necessary. Since data protection law, and within this,
rules concerning data processing, are well codified, it is easy to find legal arguments
for interpreting these specific points. However, it should be emphasized that such
legal arguments can only be interpreted in a constitutional, rule-of-law democracy, or
in a narrow sense, in the legal system of the EU. Nevertheless, there are also moral
arguments and fundamental values, which may be evoked to support these legal ar-
guments.
4.1 (Moment in) time as a discrete boundary for erasure/retention
(a) Even before recording of information takes place
This is the first, or even preliminary point, which precedes data processing itself. It
can be regarded as a measure, which may prevent the need for requesting information
to be erased. For example, if someone wants to make a photo or video recording of
someone else's activity, and the data subject realizes the preparations, the subject may
ask him not to do so. The subject generally has a right and moral arguments to support
his demand, although there are situations when this preliminary step cannot be ap-
plied: if someone actively participates in a street demonstration, he cannot demand
recording of his participation not be made – he has become, even if temporarily, a
public figure, performing public functions, and his activity is information of public
interest, even if in a formal sense it can be regarded as his personal data. He cannot
discriminate certain media either; he cannot distinguish friendly and adverse reporters
or television channels (although it is not infrequent that journalists and documentary
filmmakers suffer atrocities in such situations for similar reasons).
(b) Immediately
If the data subject discovers that his personal information is being, or has just been,
recorded, he may demand the immediate deletion of the information, thus preventing
the spread of the recorded information. The ubiquity of information recording devices
nowadays implies that individuals can be part of such a scene instantly, constantly, in
particular (but not solely) in public spaces. Although there is a great pressure from the
data industry to record and distribute ever more personal information, the moral right
to object to such recordings is reflected in the fact that in some non-European coun-
tries where legal protection is weaker, in order to call data subjects' attention, the
industry accepts it as a de-facto norm that recording equipment make a shutter-click
noise that cannot be turned off.
The mainstream (printed and electronic) media have traditional privileges in re-
cording and distributing personal information: this is partly reflected in the press law,
partly in the practice of courts in press-related lawsuits, and partly in the codes of
ethics of the media. Typically, the media are allowed to record information on identi-
fiable persons in public spaces, for example as part of a long shot, however, zooming
in on individuals and recording this information is allowed only if consented by the
persons concerned.
52
52
As a main rule, the media can record such information under prior consent of the people
concerned, however, there are some exceptions when asking for prior consent would spoil
the situation. In such cases consent should be obtained right after the recording is made, on
the spot – and if the consent is not given by the subjects, the recording should be deleted
immediately. Well-known examples of such a situation are the candid camera type pro-
grams, when only those recordings can be seen on television, which the victimized subjects
consented to after realizing the fact of recording (and that is why all such broadcasted epi-
sodes end with laughter, and not with angry reactions).
Again, this demand for deletion of the recorded information cannot be applied
when the data subjects perform public functions.
(c) When a legal deadline expires
Under the data protection regulation, data controllers can lawfully process personal
data (provided the other requirements are met, see section 3) as long as they are nec-
essary for specified purposes. This may include being able to prove the existence of a
relationship between parties after the primary relationship ended (e.g., contractual
obligations completed). After this period there is no legitimate ground for retaining
the data. In criminal law, information on prior convictions are kept in official registers
until the expiry of the time prescribed by law, after which no detrimental legal effects
shall apply on prior convicts. Similar expiry dates apply to minor offences, too. After
these dates the data subject may receive a clean certificate of good-conduct. The expi-
ry of such deadlines generally impose an obligation on the data controller to delete the
data, however, the concerned person may also require the deletion of her data for-
warded earlier to other data controllers.
(d) When the conditions of lawful data processing are not met
In some cases processing of personal data takes place without meeting the condi-
tions of lawful data processing as prescribed by data protection law. Such situations
may occur, for example, when a data subject withdraws her consent and her data is
retained and used nevertheless, or the purpose of processing does not exist anymore.
In these cases, time is not an autonomous factor, but the legitimacy of data processing
is limited in time (in hindsight). A complicating factor here is that data subjects may
sometimes realize the non-compliant processing only ex post facto.
A special case occurs when a person objects to the processing of her personal data
in the area of direct marketing. Many direct marketing laws oblige data controllers
(the marketers) not to delete such data, but to put them on a separate list, the so-called
Robinson list. The purpose of such a list is to filter out the “Robinsons” and not target
them in subsequent marketing runs. As in the previous cases in this category, the le-
gitimacy of processing here is in a sense limited in time. There, however, is no right
to erasure after this point, but only a sort of “filtered use” of the subject’s data in the
future.
(e) At pre-defined (or default) dates
Comprehensive user-centric identity management systems like PRIME
53
envision a
network of compatible data processors within which rules set by laws and individual
contracts, or defined by data subjects themselves, are automatically enforced. For
example, if the data subject posts a photo to a social network site for two weeks only,
after this date the photo will automatically be deleted (and not only from the primary
data processor but also downstream from all systems adhering to the same standard).
Despite working prototypes, PRIME on a large scale is still a vision.
53
Privacy and Identity Management for Europe, www.prime-project.eu.
From a different perspective, Mayer-Schönberger's suggestion is a somewhat simi-
lar idea: each piece of personal data should have an expiry date after which it should
automatically be deleted.
54
Such expiry dates may be defined as default characteristics
of the data processing system, but may also be defined individually by the data sub-
ject. The expiry dates may be changed before the deletion of the data.
(f) Grey zone: data of the deceased
Death is the ultimate turning point in people's life, marking the end of being a legal
subject, however, not necessarily meaning the end of remembering the deceased per-
son. In most legal regimes the data relating to the deceased are not personal data in
the strict sense of the word, although the virtually indelible data of the deceased may
revolve in web-based services for a long time. In the case of the deceased RTBF can
only be enforced by surviving relatives. In this case it is not the protection of personal
data but the protection against the injury to the memory of a deceased person which
may be applied, and the relatives are entitled to file for court action.
We can imagine the history of data relating to a deceased person as an ever fading
grey zone, or a virtual trail of a comet, which at the beginning (at the luminous nucle-
us of the comet) is very close to the personality of the deceased, and through the pass-
ing of time becomes mere historical data, gradually losing its personal nature.
It should be noted that data relating to the deceased may also be relating to the sur-
viving relatives and hence the decision whether or not to erase the data depends on
more factors than just the interest of the deceased.
(g) Never
There are cases when RTBF can never be enforced lawfully. This is the case of
personal data of persons performing public tasks, generated in connection with their
task. These data are strictly speaking personal because they relate to an identified or
identifiable natural person, but the person is treated as an institution rather than as an
individual and the public interest prevails over the private interest of the individual.
Similarly, personal data lawfully published in the media cannot be erased either. It is
questionable whether this rule applies to online media, too, since a fundamental pur-
pose of the RTBF is exactly to counterbalance the unintended consequences of using
new media.
(h) Special case: Memory-preserving institutions
This case represents one of the most controversial domains of RTBF: forgetting in
archives and other memory-preserving institutions. The international archiving com-
munity has strongly opposed the enactment of art. 17 GDPR.
55
Administrative ar-
chives are operating under legal obligations, which are at odds with a right to be for-
gotten or erasure for data subjects. Historical type archives (in particular the ones
collecting documents on recent history) are meant to preserve history for the benefit
of the future. Removing personal data from the archives voids this purpose. Hence it
54
Mayer-Schönberger 2009.
55
See the declaration of the Association of French Archivists 2013.
comes as no surprise that, according to the draft EU Regulation, RTBF shall not apply
to the extent that processing of the personal data is necessary for historical, statistical
and scientific purposes.
4.2 Use and time (Moving from immediate to remote needs?)
This section has elaborated on discrete moments in time in which it is relatively
clear whether personal data can be retained or has to be deleted. The interests of the
data subject who wants their data be removed are at the core in the cases elaborated.
In most cases discussed only the data subject (or relatives in case the data subject is
deceased) and the data controller. The examples have focused on the immediate in-
formation needs of these parties. The use of information by third parties seems to only
be acknowledged in the special case of the memory preserving-institutions (in which
the information already has a context-specific meaning). Remote information needs,
be it from archivists who aim to preserve our times for future historians or from pre-
dictive analytics which may improve health care, or from entrepreneurs who want to
have legal certainty regarding the reputation and creditworthiness of their business
partners, also play a role in RTBF decisions. Third parties use the information in the
external transactive memory and may rely on it. It is here where a balance of interests
needs to take place leading to deleting or retaining certain personal data. Time, as
said, plays a role in this balance as a contributing or limiting factor. In the following
section we elaborate on the role of time with respect to ‘use’ and ‘meaning’. We will
look at the meaning of information in its data life cycle, and the changing balance of
different interests in time.
5 Balance of interest over time
It has been said that the RTBF “is based on the autonomy of an individual becom-
ing a rightholder in respect of personal information on a time scale; the longer the
origin of the information goes back, the more likely personal interests prevail over
public interests.”
56
In this section we therefore shall take a closer look at the balance
of interests over time, where the passing of time influences the meaning and use of
information by different parties, and thereby affects the balance of their interests.
5.1 Changing balance of interests: data life cycles
In order to shed some light on the manners in which the balance of interests can
change over time, we shall group the interests involved in data protection cases into
two sets. On the one hand the pro-processing interests, which include all legally rele-
vant interests promoted through the processing of the personal data at issue, and on
the other hand the con-processing interests, which include all legally relevant inter-
56
Weber 2011.
ests that may be demoted by the same processing. Pro-processing interests may com-
prise diverse meanings and usages of information; economic and non-economic goals,
right and values, such as economic freedom, efficiency, property interests, security,
freedom of expression, freedom of information, transparency, democracy, equal judi-
cial protection, etc. The most important pro-processing interests are based on the
meaning data have for the public, the values currently secured in the exceptions of
Art. 17(3) of the proposed Data Protection Regulation that allow for retention of data:
(a) to protect the right of freedom of expression; (b) for reasons of public interest in
the area of public health; (c) for historical, statistical and scientific research purposes;
(d) for compliance with a legal obligation to retain the personal data by Union or
Member State law.
57
Con-processing interests similarly may include not only privacy
and data protection rights strictly understood, but also the rights to private life, identi-
ty, self-determination, non-discrimination, a fresh start, protection from unwanted
intrusions, dignity, etc.
We model the changing balance of pro-processing and con-processing interests in a
graphic form, as in figure 1. The horizontal axis represents the passage of time, from
the initial moment when the processing has started (time 0). The vertical axis repre-
sents the legal impact that the processing has with regard to the pro and con interests.
The full curve represents the importance of positive impact on pro-interests and a
dotted curve the importance of the negative impact on con -interests. The importance
of the legal impact of a processing on each set of interests at a particular point in time
is represented by the height of the curve corresponding to that interest at that point in
time. The curve over time is the expression of the data’s life cycle; “information as it
changes value through the full range of its life cycle from conception to disposi-
tion."
58
For instance in Figure 1, at time 0 the curve corresponding to pro-interests is much
higher than the curve corresponding to con-interests. This means that at that point in
time the positive legal impact which the processing provides by promoting certain
interests is much higher than the negative legal impact that the same processing caus-
es by diminishing the data subject’s privacy. Therefore, this processing, at time 0,
provides a net benefit all things considered. Consequently, a regulation permitting it
also has a positive legal impact, all things considered.
We shall here focus on cases where the originally prevailing pro-processing inter-
ests are at a later stage outweighed by con-processing interests. This happens in par-
ticular when the personal information is distributed online, for purposes pertaining to
journalism, or more generally to freedom of expression. In such cases, there is gener-
ally a continuous diminution in the importance of the distribution of information with
regard to both pro- and con- processing interests, up to the tilting point. This is be-
cause public interest, more aptly called public intrigue here, is quite fleeting, and thus
57
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION on the proposal for
a regulation of the European Parliament and of the Council on the protection of individuals
with regard to the processing of personal data and on the free movement of such data (Gen-
eral Data Protection Regulation) (COM(2012)0011 – C7-0025/2012 – 2012/0011(COD))
adopted in the first reading of the Parliament on 12 March 2014.
58
Hill 2009, p. 57.
the public meaning and use of information is equally fleeting. Entering any number of
momentary internet snafus (e.g., Alexandra Wallace, Caitlin Davis, Justine Sacco)
reveals spikes in search activity over a matter of weeks and then a sharp drop back to
insignificance.
59
The ‘newsworthiness’ of content generally protects the public’s right
to access the information.
60
Like data freshly created (e.g., current address, purchases,
body measurements) this information is relatively current, contextualized, and new
before it becomes outdated, uncontextualized, and condensed or aggregated. Older
personal facts are generally less meaningful for both the public and the data subjects
and are thus also less used. In particular, older information about a person usually
gives a less relevant clue on what a person is now, and therefore should in general be
less meaningful both for those who want to know about that person, and for the per-
son herself. There are, obviously, deviations from these general trends, since when a
person changes her social position, certain past information suddenly may become
more important to the public or more damaging to the data subject. For instance, the
fact that the data subject applies to an elective political position makes data concern-
ing her past criminal or inappropriate behaviour more meaningful to the public. On
the other hand, data concerning inappropriate behaviour of the data subject when
being a student can become more damaging when the data subject enters the job mar-
ket, since such data may have an impact on employability
61
. Here, we shall just con-
sider the more common case when there is a continuous decrease in the importance of
impacts on both pro- and con-processing interests. Consider for instance those cases
where personal information related to crimes or bankruptcies is distributed a long
time after such events took place
62
. This information is most relevant to the public for
a short time after its publication and then progressively loses its meaning and is used
less, but continues to have a significant impact on the interests of the concerned per-
son. In such cases, usually both impacts on freedom of expression and on privacy
decrease as time goes by, but the diminution of the impact on freedom of expression
proceeds at a steeper pace. Thus while at the beginning the benefit to the public would
outweigh the loss to privacy, at a certain point in time, i.e., the reversal time, there is a
change: the loss in privacy outweighs the benefit in freedom of expression. This is the
point in time where, arguably, the data should be forgotten. In this typical context the
pro-processing interests prevail over a RTBF up until a certain point in time, and after
that point privacy takes the lead, as shown in Figure 1. This can be explained by the
fact that while the public meaning of information is related to its actuality, even old
information about a person tends to be meaningful for that person, having an effect on
how that person is publicly perceived.
59
See Ambrose 2012, p. 413 for examples taken from http://google.com/Trends.
60
“Newsworthiness” varies across jurisdictions. See e.g., Time, Inc. v. Hill, 385 U.S. 374
(1967); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491
U.S. 524 (1989); C. von Hannover v. Germany, ECHR, 26/4/2004, Rec. 2004-VI 40 EHRR
1; Schwabe v. Austria, ECHR, 28/8/1992, A 242-B.
61
See Ambrose 2012 and Sartor 2014.
62
Cf the Google Spain case referred to in section 3 (footnote 50).
Figure 1 The impact of processing (line) and non-processing (dotted line) over time
Figure 2 clarifies this point by representing directly the difference between the dif-
ferential advantage resulting from the favourable impact on publicity-interests (the
publicity-related gain) and the differential disadvantage resulting from the unfavoura-
ble impact on privacy-interests (the privacy-related loss) obtained by processing the
information. The balance is positive before the reversal-time, it is 0 at that point and
then it becomes negative.
Figure 2 Net social value of data processing over time.
5.2 An increase in pro-processing interests over time
The pro-processing interests are not always declining in time, because the benefits
are not always immediate. Public interest in that which is newsworthy may be fleet-
ing, but public interest in history, social science, and cultural preservation last far
longer. Think for instance of historical interests or when there is revived interest in
the specifics of the content (e.g., an individual decides to run for office). Other than
immediate interests are met remotely as information is combined, aggregated, or re-
flected upon revealing previously unknown insights into the past or future.
63
The dif-
ficulty is that ‘history’ may be hard to recognize immediately, the interest very likely
grows over time with regard to certain data subjects instead of declines.
However, we may be able to cope with such long-term interests in different man-
ners. Because there is a significant difference between individuals like employers or
first dates searching an individual and public interest, the meaning of the information
in a context can differ; the employer is looking for a specific person while the public
interest generally (not always) will be focused on a certain event in its context. Wik-
ipedia’s Biographies of Living Persons Policy draws a distinction between general
public interest in the individual or the event or topic of an entry. It reads:
“Caution should be applied when identifying individuals who are
discussed primarily in terms of a single event. When the name of a
private individual has not been widely disseminated or has been in-
tentionally concealed, such as in certain court cases or occupations,
it is often preferable to omit it, especially when doing so does not
result in a significant loss of context... Consider whether the inclu-
sion of names of private living individuals who are not directly in-
volved in an article's topic adds significant value.”
64
Based on this policy, the Star Wars Kid is not named in the entry on the Star Wars
Kid.
65
Wikipedia also has a deletion policy that results in five thousand pages being
deleted each day, one reasoning being a lack of ‘notability,’ which requires significant
coverage, reliability, sources, independence from the subject, and a presumption that
the subject is suitable for inclusion.
66
According to the policy, articles with unclear
notability should not be deleted, but those that are clearly not notable should be and
useful material preserved on the talk pages,
67
which are not indexed by Google.
68
Like
Wikipedia, the right to be forgotten could (but does not) ask the difference between
public interest and private searches in order to determine the right course of action
when a user seeks to have personal information erased, as opposed to quick deletion
or automatic public interest preservation. In some cases public interests may be served
just as well by content that is anonymized (interference with the memory process on
the level of encoding), as was done with the Star Wars Kid entry on Wikipedia.
Moreover, preservation efforts could seek to conserve that personal data that may
63
For further discussion of the information life cycle, see Ambrose supra note 6.
64
“Wikipedia: Biographies of living persons – Wikipedia, the free encyclopedia,”
http://en.wikipedia.org/wiki/Wikipedia:Biographies_of_living_persons#Presumption_in_fav
or_of_privacy.
65
“Talk: Star Wars Kid,” Wikipedia, http://en.wikipedia.org/wiki/Talk:Star_Wars_Kid.
66
“Wikipedia: Notability,” Wikipedia, http://en.wikipedia.org/wiki/Wikipedia:Notability.
67
Id.
68
“Wikipedia talk: Talk pages not indexed by Google,” Wikipedia,
http://en.wikipedia.org/wiki/Wikipedia_talk:Talk_pages_not_indexed_by_Google.
continue to serve remote needs while offering limited search access where appropriate
and in this way enabling a form of “forgetting” on the retrieval level.
69
5.3 Carrots and sticks
To determine how to regulate “digital forgetting”, it is not sufficient to consider the
interests at stake. We also have to consider the motivations of the parties involved.
Let us now focus on cases concerning the publication of publicly relevant information
on online platforms.
A simplified representation is provided in the upper part of figure 3 where a linear
relationship is assumed between the represented interests and time. In part A of figure
3, the pro-processing curve starts at the higher level, but decreases more rapidly than
the con-processing curve, so that at a switch point the two lines cross: from that point
on, the damage to con-processing interests is no longer compensated by the benefit to
pro-processing ones. Subsequently, processing provides a negative legal trade-off,
which apparently justifies its impermissibility, and the provision of sanctions upon the
processing parties, i.e., publisher/uploader of the information and the host provider
who is storing it in his virtual repository (server/website/forum).
69
For instance, the Internet Archive does not offer full-text search functionality on the site, but
Google has performed a complete crawl of the site allowing the archive to be searched using
Google’s “site:” feature. The Internet Archive also has detailed instructions for using ro-
bots.txt to prevent crawls and removal policy where the technical solution is not possible.
“Removing Documents from the Wayback Machine,” Internet Archive, at
http://archive.org/about/exclude.php.
Figure 3
Figure 3 also contains a representation of the motivation uploader (part B) and of
the host provider (part C), both of which are also decreasing, but remain positive (as-
suming that no sanctions are provided).
The meaning that data has for uploaders can differ and thus their motivation to up-
load. The uploader’s motivation includes the economic gains the uploader expects
from distributing the information (as is the case for newspapers and websites or host
providers getting subscriptions or advertising), but also includes the moral and social
importance one attributes to providing such information. Abstracting from different
individual attitudes, we may assume that motivation for distributing information is
measured by the maximal personal loss one would be ready to sustain for not distrib-
uting it, regardless of the grounds that explain this attitude.
Consider, for instance, the situation of a person who has to decide whether to up-
load on a blog information concerning a political or economic scandal, knowing that
this may cause him some personal advantage (reputation, some chances of having a
political role in the future, possible some financial gain resulting from the fact of at-
tracting people to the blog) but larger personal losses (e.g., losing possible contracts,
missing career advancements, even putting at risk one’s life or freedom, etc.), but
knowing also that this information would be highly beneficial to the public, contrib-
uting to curb the plight of corruption, while damaging the data subject. The motiva-
tion of such a person would likely be measured neither by the mere trade-off of per-
sonal gains and losses, nor by adding to this trade-off the full amount of the expected
(net) public benefit. It would rather be measured by adding to the trade-off of personal
gains and losses a quantity expressing the limited extent up to which the person inter-
nalises the moral/social merit of his action, i.e., a quantity that indicates what addi-
tional personal loss he would be ready to sustain to accomplish that action.
Consider for instance a piece of news being published in an online journal, and as-
sume that after a certain point in time the legal balance becomes negative. At that
point in time, the publisher will still have an interest in keeping the news online, since
it may still attract readers and thus produce revenue. Thus, if there were no law in
place (abstracting from the possibility that the data subject uses private sanctions of
incentives), the publisher would probably continue to distribute the information even
when the legal trade-off has become negative.
The motivation is assumed to be similar to that of uploaders, while being generally
lower, since providers host huge amounts of materials and have a small interest in
continuing to distribute a specific single piece of information. It is true; providers
have a strong interest in having a legal discipline that does not make them liable for
the distribution of illegal information. However, if the battle for a general exemption
were lost, they would prefer to comply with removal requests, rather than be subject
to sanctions in individual cases.
Sticks.
We may assume that sanctions for failure to remove the data may include the com-
pensation of the damage to the data subject, as requested by Art. 23 DPD. This com-
pensation, according to national regulations, such as the Italian one, may also include
non-economic damage. In addition the sanctions may include administrative or crimi-
nal fines, as established by national legislation, and as required by the GDPR.
If such sanctions were always to be imposed upon a processing only after the point
in time where the balance between pro- and con-processing interests is reversed, and
the processing party knew exactly where this point is located, such a discipline would
induce the behaviour that maximises the achievement of legal values. Before the re-
versal-time uploaders and providers would leave the material on line, since they could
enjoy the benefits resulting from the distribution of the information without encoun-
tering any legal sanction; after that point, they would take it down, since continuing to
distribute the information would expose them to the obligation to compensate damag-
es of the data subject, and to any further sanction established by data protection law.
This analysis however, does not consider that processing parties may be uncertain
as to whether distributing certain information at a certain point in time provides a
positive or a negative balance between publicity and privacy interests, being therefore
lawful or rather unlawful. Or in any case they may be uncertain as to how the compe-
tent decision maker will judge the issue.
Thus, the withdrawal time - namely, the point in time when that the expected sanc-
tion (the result of multiplying the amount of the sanction with the change of being
sanctioned, for leaving the information on line) will outweigh the motivation to dis-
tribute the material - will be earlier than the reversal-time. In other words, the parties
involved in the distribution will be induced to withdraw the material prematurely, i.e.,
at times when publicity interests still outweigh privacy interests. This anticipation will
be larger when the motivation is smaller or the uncertainty is greater. If we assume, as
it seems reasonable that uploaders have a stronger motivation to keep the material on
line than providers, the expectation of a sanction will have a stronger anticipatory
effect on providers than on uploaders, as Figure 3 shows.
Thus, uploaders and host providers would engage in premature self-censorship,
namely they would bow down to removal requests at times when the benefits of keep-
ing the information on line still exceed the damage to the privacy interests of the con-
cerned data subjects.
Note that to have this effect the sanction does not need to be extremely severe: it
suffices that the sanction, discounted by the probability of not being punished, over-
rides the motivation of the uploader. Also a punishment limited to damages (in partic-
ular when also moral damages are included) may have such a result.
Thus sanctioning the continued distribution from the point in time when the con-
processing legal interests outweigh the pro-processing ones is likely to lead to antici-
pated removal. Anticipated removal would also happen in case an unfulfilled request
by the data subject were needed to trigger the sanction: anticipated requests would
lead to anticipated removals.
Consequently, a takedown system, where a user can simply request data be re-
moved, requires the data controller to perform this assessment for themselves, which
may lead to valuable information being removed because there is so little guidance on
how time should be incorporated into the removal equation.
70
While a RTBF that
adheres to a life cycle approach is better than one that does not, data controllers may
not be the appropriate source for establishing a standard for interpreting exceptions. In
order for the RTBF to account for the interests of the data subject, the data controller,
and the public, more guidance that recognizes the digital life cycle (ephemerality of
digital content and public interest, as well as the value to remote and immediate users)
would certainly bolster the legitimacy and strength of the RTBF.
6 Conclusion
In a world where you are what Google says you are and digital dossiers impact au-
tomated opportunities beyond view, the RTBF plays an important role in user partici-
pation. The complication is that information removal can be just as dangerous as in-
formation storage. Digital information sources, and especially the Web, function as
very large external transactive memories. Acknowledging the growing wish of indi-
viduals to counter the ‘remembering-by-default’ of this memory requires the imple-
mentation of a form of digital ‘forgetting’. However, because it is an external
transactive memory, data controllers and data subjects are not the only parties to be
considered, but also the interests of others: the public. Balancing these interests is
difficult. We can, however, gain guidance and inspiration from the human memory
process in which the factors ‘meaning’, ‘use’ and ‘time’ play important roles. ‘Time’
is a factor that generally supports ‘forgetting’ when the passed time increases, while
‘meaning’ and ‘use’ generally oppose forgetting when the meaning information
70
Ambrose 2013.
and/or the frequency with which it is used increases. This makes ‘time’ a crucial ele-
ment to acknowledge in relation to the RTBF.‘Meaning’ and ‘use’ are often in some
form or the other recognized by law as being important factors to retain data. For
instance, the exceptions mentioned in art. 17 (3) GDPR, inter alia the freedom of ex-
pression, scientific and historical interests, are of such importance to the public that
they oppose the ‘forgetting’ of the information.
However, beyond this general expression of the societal value of data retention in
view of time, the exact role that time plays in current privacy or data protection law is
not very clear. Generally, ‘time’ can play two parts in law. On the one hand, ‘time’
can play a role as a weight in a balance of interests, as a factor adding or removing
weight to the request to ‘forget’ personal information or its opposing interest, result-
ing in tipping the balance in either direction. On the other hand, ‘time’ can play a role
as the marker of a discrete moment where the grounds for retention no longer hold
and ‘forgetting’ of the data should follow.
In section four the important points in time in the data processing process are iden-
tified, where time functions as a marker of a discrete moment in the information pro-
cess. The identification of these points show that the ‘time’-cycle of the data pro-
cessing process highly depends on the use of the data; the conditions under which the
data are acquired, the purposes for which they are collected and whether they are
necessary. The analysis of the specific points in data processing shows the importance
of the point in time with regard to the use of information in the data processing pro-
cess for the invoking of a RTBF. Generally at the stages in the process where the
information loses relevance for its use (at least for the initial purpose for which it was
collected), the chance for a successful appeal on a RTBF is increased.
The role of time as a weight in a balance of interests, is more complex. Important
for this balancing is to recognize that information has a lifecycle and its value (also to
the different interested parties) changes over time. Data is generally created to meet
the current state of affairs in the world and has the most meaning and value in that
context. The ‘newsworthiness’ of content is thus often fleeting, and information can
easily become outdated, uncontextualized, and condensed or aggregated. Next to im-
mediate needs, information can serve remote needs as it is combined, aggregated, or
reflected upon revealing previously unknown insights into the past or future. Despite
the fact that these information needs are important, there is very likely a point in time
where the added value of personal data retention has diminished so far that the inter-
ests of the individual to be ‘forgotten’ prevail.
Utilizing time can help to inform appropriate decisions about the value of infor-
mation. Because ‘time’ generally is an important force opposing memory processes
and enabling forgetting, it should be of importance for the implementation of a right
to be (digitally) forgotten. ‘Time’ could play a pivotal role, because at an operational
level, it provides a tool for assessing the value of data or content, which is necessary
in order to apply the exceptions and weigh rights and interests. However, the ‘time’ in
relation to information life cycles will need to be researched more closely before it
can be shaped into a usable tool. The role that times plays is very complex. A specific
time span can mean something completely different for the data subject (lifetime per-
spective), the data controller (processing and use time) and for third parties (public
interest, transactive memory use). The passing of 10 years in time has a different
meaning in relation to the lifetime of an individual than it has in relation to historical
interest of the public. The awareness of different time spans can tell us something
about the time span that should be used for the implementation of the RTBF. Over the
course of creation to storage to aggregation to edits to maintenance activity or death,
digital data may serve or fail to meet immediate or remote needs. Both information
needs are important and should be protected, but personal data at some point, may
serve neither. This is the point in the information life cycle where a RTBF may be
viable without triggering an exception. But how long and how little interest or use
decreases the value of information enough to be overpowered by the interests of the
data subject? And how does this time span relate to the lifetime of an individual? A
lot of questions still remain to be answered, but what is clear is that approaching the
RTBF from a time span that transcends the lifetime of a data subject defies its own
use, because the ratio behind the RTBF is that individuals can get a better control of
their (informational) life.
The changing role of time in this –in itself already complex– balance of interests
requires more specific research. Several issues will need to be explored like the bal-
ance between accountability and erasure, and balance between preservation and pri-
vacy. The point we want to stress in this paper is that we should not overlook or dis-
regard the importance of ‘time’ when we are shaping tools like the RTBF that aim to
introduce ‘forgetting’ into data processing processes. Taking the passing of time into
consideration can help assess the information landscape at issue for the RTBF and
account for the changing values of information as it ages, establishing the balance all
rights must find with other interests.
Acknowledgments. This paper originates from the “Timing the Right to Be For-
gotten” panel-discussion at the Computers, Privacy and Data Protection conference
(CPDP) in Brussels 2014 organized by the Tilburg Institute for Law, Technology, and
Society (TILT). We therefore would like to express our gratitude to TILT and CPDP
for supporting and making this discussion possible.
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