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Speaking of Forgetting: Analysis of Possible Non-EU Responses to the Right to Be Forgotten and Speech Exception
This article investigates an under-discussed provision of the European Union’s (EU’s) General Data Protection Regulation (GDPR) regarding genetic data, i.e., the right to be forgotten. The debate on this right came from the commerce-related side of data protection instead of the medical side. Thus, this article addresses the implications of the RTBF for the lawful processing of familial genetic data. The article develops a normative, ethically focused principles argument about interpreting genetic data’s right to be forgotten. It gives due consideration to autonomy, privacy, and human dignity. It argues that the individualistic approach of genetic privacy materialised through the extreme solution of data erasure is challenging to combine with familial and scientific research interests. The article suggests an interpretation of the GDPR according to bioethical principles and the inclusion of a specific exception regarding genetic data to prevent patients from claiming the right to be forgotten.
The 2014 Google Spain lawsuit was a major European Court ruling. It indicated that online name searches yield personal information. Google and other search engine operators must remove or prevent search results that breach privacy rights. The “right to forget” lets users remove their personal information from search engine results. Your internet privacy isn't completely protected. Technology changes quickly, making it hard for laws to stay up. The right to be forgotten is criticized for its deceptive nomenclature and inconsistent application. European websites may remove information, but non-European sites (like the US) may not. This right may also limit free speech. The chapter discusses the “right to be forgotten” from the new GDPR perspective. They are testing whether this right gives internet users more control over their data. It conflicts with privacy and free speech. It's considerably difficult since private firms, whose major objective is to make money, have a say, raising problems about our rights.
The right to be forgotten in the legal system of the European Union: realities, problems and prospects
Purpose ”“ Considering the relevance of personal data protection, this article focuses on the identification of the criteria used by Colombian Courts regarding the rights to access, modification and erasure personal data within the context of information made available through search engines. This framework will expose the different cases ruled by the Colombian Constitutional Court as it attempts to highlight which were the criteria used by the courts that brought them to rule that search engines are mere intermediaries between the content makers and data subjects. Finally, this study aims to contribute not only to the data protection legal literature in Colombia, but also, to improve the possibilities to effectively implement user´s rights of online search engines in Colombia. Methodology ”“In order to achieve the purpose of this research project, the following methodological strategies will be employed: (i) Legal-analytical study, by way of reviewing the Colombian regulatory framework in order to map out main rules regarding the fundamental rights to access, modification and erasure of personal data, and determining which ones are the aspects hindering the effective implementation of the rights; (ii) Legal-theoretical study, where it reviews the issues identified by legal scholars as hampering the implementation of data protection rights in general; (iii) Legal-empirical study that aims to raise awareness regarding the incidence of the activities carried out by search engines in the life of data subjects. Findings ”“ The Colombian Constitutional Court has seen search engines as mere intermediaries, meaning they do not have to rectify, correct, eliminate or complete the information listed in the results they provide. This approach demands that the Judiciary enforces the existence of a right to request the erasure of links and the need of procedures provided by them to do it effectively without erasing or altering the content of the website. This delisting process should not be arbitrary based on conditions that allow data subjects to ask the erasure of links associated with their names. In the European Union, the conditions to get those results delisted are inadequacy, irrelevance, or excessiveness in relation to the processing purposes. The current position of the Constitutional Court about the search engines role and their responsibilities has not protected the user’s fundamental rights to privacy, reputation, and honor. Therefore, a more committed study on behalf of the Court is required. Practical Implications ”“ In the Muebles Caquetá Case, the Court must point out the importance of the activities carried out by online search engines, and force them to face the implications of being a “controller” of the processing of personal data that takes place within their services. I suggest that the Court itself should draft clear delisting guidelines considering the opinions of a group of impartial experts, civil society representatives and the local Data Protection Authority. Originality ”“ Considering the implications posed by personal data and data mining, this article identifies the legal and regulatory framework surrounding those activities and in way contribute to create a data protection culture in Latin America, raise awareness regarding the incidence of search engines in the life of data rights holders, identify possible disconnections between the existent regulatory framework for personal data rights, and facilitate the cooperation between Courts and stakeholders of the telecommunication and media sectors, based on the common goal of fulfilling the public interests of ensuring data protection rights.
Regulators increasingly ask Internet intermediaries to limit access to harmful content. These actions can create negative externalities that are not fully taken into account when the regulatory decision is adopted. Drawing on law and economics literature on better regulation and cost-benefit analyses, the thesis proposes a system to help regulators take better account of the costs and benefits generated by measures affecting Internet intermediaries, and choose the measure that maximizes social welfare. The thesis identifies the various ingredients of a cost-benefit analysis, including a consideration of the different Internet intermediaries involved (search engines, ISPs, etc.), different content policies to be enforced (copyright, fight against terrorism, etc.), different institutional and regulatory approaches (self regulatory, co-regulatory, etc.), and the effects on various fundamental rights. The thesis proposes that any regulatory proposal designed to limit access to harmful Internet content be subject to an initial questionnaire, a cost-benefit analysis, a public consultation and a peer review before being adopted, and that these steps would increase the quality of regulation by, among other things, making the direct and indirect benefits and costs more visible, and trade-offs more explicit. The steps will also facilitate international benchmarking. The thesis points to the European framework for regulation of electronic communications as a source of inspiration for "better regulation" methodology that could be applied to Internet content issues.
Teniendo en cuenta la importancia de la protección de datos personales, esta investigación se centrará en la identificación de los criterios utilizados por los tribunales colombianos respecto a los derechos de acceso, modificación y supresión de datos personales en el contexto de la información disponible al público a través de los motores de búsqueda. Este marco de referencia expondrá los diferentes casos puestos en conocimiento de la Corte Constitucional de Colombia y de la Corte Suprema de Justicia de Colombia, en tanto que intenta resaltar cuál fue el criterio utilizado por estas para determinar que los motores de búsqueda son simples intermediarios entre los creadores de contenido y los titulares de datos personales. Finalmente, este estudio intenta contribuir no solo a la literatura legal de protección de datos en Colombia, sino también a mejorar las posibilidades de implementar efectivamente los derechos de los usuarios de los motores de búsqueda en línea en Colombia.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2436436
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 digital information technologies affect the accessibility of information over time and time plays a fundamental role in biological forgetting, ‘time’ is a factor that should play a pivotal role in the RTBF. This chapter 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 follow and (2) ‘time’ as a factor in the balance of interests, as adding or removing weight to the request to ‘forget’ personal information or its opposing interest. The chapter elaborates on these two roles from different perspectives and highlights the importance and underdeveloped understanding of the second role.
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