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Hasty legislation will make a mess of Europe's 'right to be forgotten'

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Opinion The European Commission proposal to include a 'right to be forgotten' in data protection laws risks causing legal, technical and ethical mayhem if it is not thought through more thoroughly.

While it might seem like a good idea to give people the right to force organisations to delete their personal data, legislators should stop and think very carefully about the implications of such a rule for free speech, other people's rights and the nature of recorded fact.

The Commission is reviewing data protection legislation in a welcome update to 15-year-old laws. It plans to put forward new legislation in 2011, according to last week's 20-page paper (106KB PDF).

A Commission FAQ about the process said that individuals should have more control over their own data. "They need to know what their rights are if they want to access, rectify or delete their data," it said.

"For example, there should be a 'right to be forgotten,' which means that individuals should have the right to have their data fully removed when it is no longer needed for the purposes for which it was collected," said the FAQ. "People who want to delete profiles on social networking sites should be able to rely on the service provider to remove personal data, such as photos, completely."

You might think that you should have the right to erase that photo of yourself in that Barney Rubble costume from Facebook forever. And you might be right. But what about the right of your proud friend in the Wilma costume to have his picture displayed?

If a student who marched in London this week to protest against the raise in university tuition fees decides that they do not want to appear in photographs of it, can they insist that their face be blurred in pictures on Facebook? What about in newspapers?

There are two kinds of rights at stake here. One is the right of other individuals to have material continue to exist. If you want something deleted – a picture, an account of an event – that includes other people in any way, you are dealing with conflicting rights. Whose should win out?

The other kind of right is that of society to know what has happened. There was a protest march this week and thousands of students participated. This is important, it is part of the fabric of the nation's life. If all of those people were able to delete themselves from records of that event then how can we know in the future that it happened?

Society must have a right to record history, and history is made up of material depicting or describing individuals. Its distortion is nothing new: as Winston Churchill observed, history is written by the victors. But the information age should make it harder to lose objective records. Politicians should be careful if they pass laws that might undermine that.

Not all 'right to be forgotten' laws need to go that far, though, and some already exist.

At the restrictive end of the spectrum are laws in Germany and Switzerland. The German law was used to obtain a ruling from a German court to erase the name of a convicted killer from Wikipedia. Unsurprisingly, free speech advocates cried foul.

The Swiss law was used successfully in a claim against Journal de Genève after the Swiss newspaper reported that the subject of a current story had a past conviction for bank robbery. Even if informing the public of a criminal's past was newsworthy, the court said, naming him was not, and it interfered with the rehabilitation of convicts. (I recommend reading Professor Franz Werro's comparison of Switzerland's right to be forgotten and America's right to inform.)

The Swiss model suggests a right to be forgotten, or a right to delete, can go beyond the protection of privacy, though that rather depends on how you define privacy. The right can be used to censor information that was lawfully made public and, in effect, change someone's record in history.

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