The Right to Be Forgotten  

Photo by Mixy Lorenzo
By Afef Abrougui
7 August 2014

Note: This guest post was submitted to IGMENA as part of the application process for the IGF 2014 Fellowship Programme sponsored by Hivos. Views expressed by the author do not necessarily reflect those of Hivos or IGMENA.
 
 
The EU’s “right to be forgotten” ruling of 13 May 2014 could be exploited by repressive governments in the Arab region to further curtail freedom of information and expression on the Internet.
 
The ruling gives EU citizens the ability to request search engines to remove links to personal information about them from search results. It applies to personal information deemed “inaccurate, inadequate, irrelevant or excessive.”[i] The court clarified that the right to be forgotten “is not absolute” and a case-by-case assessment is needed to make sure that an individual’s right to be forgotten does not infringe on the public’s right to know.
 
 
Reactions to the ruling
 
The ruling and its implementation have been met with criticism. Google’s erroneous removal of links to legitimate journalistic work and news articles published by the BBC, the Guardian, and the Daily Mail from its search results was criticized by journalists.
 
On 2 July, Google notified the Guardian of the removal of links to six articles from its search results. Three of the de-indexed articles date back to 2010 and relate to a retired Scottish referee and a controversial penalty he granted during a football match in Scotland.
 
“The Guardian, like the rest of the media, regularly writes about things people have done which might not be illegal but raise serious political, moral or ethical questions – tax avoidance, for example. These should not be allowed to disappear: to do so is a huge, if indirect, challenge to press freedom,” commented the Guardian's James Ball.
 
The ruling’s vague wording and lack of appeal and oversight mechanisms also raised concerns for free speech advocacy groups.
 
The Electronic Frontier Foundation (EFF) warned: “European regulators need to stop thinking that handing over the reins of content regulation to the Google’s and Facebook’s of this world will lead anywhere good...Restrictions on free expression need to be considered, in public, by the courts, on a case-by-case basis, and with both publishers and plaintiffs represented, not via an online form and the occasional outrage of a few major news sources."
 
The right to be forgotten and repressive governments
 
Although its implementation is currently only limited to Europe, the “right to be forgotten” ruling could inspire repressive regimes to expand their Internet filtering practices.
 
“It will be used by other governments that aren’t as forward and progressive as Europe to do bad things,” Google’s CEO Larry Page warned in late May.
 
“I do agree with [Larry Page],” wrote Dhouha Ben Youssef, a Tunisian net freedom and privacy advocate, in an email interview.
 
“These governments will take advantage from this directive. Powerful people will be able to hide disgraceful actions for their own e-reputation. For example, politicians could ask for the removal of posts that criticize their policies and power misuse,” Ben Youssef explained. “It will largely impact the investigative journalism emerging in the region.”

Governments in the region already deploy strict libel laws and broad privacy protections with no legal oversight and appeal mechanisms to deny users access to information and prosecute those who reveal misconduct or wrongdoing by state officials and the powerful.
 
In 2012, the UAE passed Federal Legal Decree No. 5/2012 on combating cyber crimes, allegedly to “provide legal protection of privacy of all information published online.”
 
However, just like other numerous repressive legislation passed throughout the past years by Arab regimes, this law is yet another tool to legitimize suppression of online speech and political dissent.
 
For instance, the decree imposes punishment on anyone for “using an electronic network or any information technology means for the unwarranted violation of the privacy of others by eavesdropping, intercepting, recording or disclosing conversations, communications, audio and video material; taking photographs of others, creating electronic photos of others, disclosing, copying or saving them; publishing news, electronic photographs or photographs or scenes, comments, data and information even if they are authentic.”
 
Nothing can stop these governments from putting in place their own “right to be forgotten” model if they wanted to. All they have to do is draft another repressive legislation or simply order ISPs to block content violating the rights to be forgotten of others (i.e. the powerful).
 
One might argue that Internet filtering is already rampant in the region and that the EU’s right to be forgotten ruling is not going to improve or worsen the situation. This is true to some extent, but the extent of Internet filtering differs from one country to another. While some governments practice extensive Internet filtering, others are keeping it at minimum levels.
 
In Tunisia, for example, the Internet remains open and uncensored since the ousting of former dictator Zine el Abidine Ben Ali. Yet, a number of government officials still advocate for the reinstatement of filtering practices to combat “defamation” and “terrorism.” Soon, they may begin to call for the filtering of the Internet to protect the right to be forgotten of others, because EU legislation enshrines this right.
 
Europe as a pretext
 
“For Reporters Without Borders (RWB), if they show me how France monitors the cyberspace, we will commit ourselves to do better.” Such was the response of former ICTs minister Mongi Marzouk, when RWB criticized the Tunisian government for setting-up the controversial Technical Telecommunications Agency tasked with investigating “ICT crimes.”
 
“This law took as reference the Budapest Convention [on Cybercrime],” Marzouk said in defence of the decree establishing the agency.
 
Arab government officials do not hesitate to claim that their practices or laws are as democratic as those of Europe, even when they are not. They also learn from the undemocratic practices of “Western democracies.” Just as the NSA’s mass spying practices can aid dictatorships, so can the right to be forgotten.
 
EU legislators need to keep in mind that each law they draft could either inspire pro-democracy reformers in lesser democratic countries or incite dictators to “do bad things.” It is up to them to choose their side.
 

Afef Abrougui is one of the fellows selected to represent civil society from the MENA region at the Internet Governance Forum (IGF 2014). She is a Tunisian journalist, writer, and researcher focusing on free expression and Internet freedom issues. She has previously worked as a reporter for the news website, Tunisia Live, and for the free speech NGO Index on Censorship.
 


[i]European Commission (2014) Factsheet on the “Right to be Forgotten” ruling (c-131/12). Available at http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf  [accessed 12 July 2014]