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

The ethics of online deletion

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Do we even need new legislation?

In France, there has been growing support for the right to delete. In 2009, the French Secretary of State in charge of the digital economy began a campaign on the right to be forgotten. So far it has led to a Code of Practice (11-page / 1MB PDF) that takes a small step towards the right.

Signed in September 2010 by Microsoft France and others, that Code stops far short of the revisionism that laws in Germany and Switzerland appear to facilitate. According to an automated translation, it talks about giving users of websites information on the 'shelf life' of personal data.

Users also get tools to locate and remove information they communicated or published, though it is unclear how far that right might go. Would you get to delete all records of online conversations in which you participated, or only your contributions to those conversations?

The French Code also provides that users need to be told about the ability of search engines to index their data. Microsoft, the only search engine signatory, appears to commit to working with publishers to facilitate the removal of certain content from its index; and to update its cache when a modification is made or information 'de-indexed'.

In the UK, we do not have a right to delete information, though we do have a right to access personal information held by others and we can insist that mistakes are rectified. We have famously draconian libel laws that have been used to censor online news archives, including our own, but we also have a relatively strong right to freedom of expression, even though it is weaker than the Constitutional right of free speech in the US.

Do we need new legislation at all? Europe recognises a human right to free expression and a human right to a private life. These rights carry equal weight and we task our courts with their application to a given set of circumstances. Are they failing in that duty?

There are technical problems with the right to disappear too. With ever-increasing amounts of digital information about all of us in ever-increasing numbers of places, how can you be sure that all information has been deleted?

What is deletion, anyway? Must it be irretrievable? Can you have every bit of data that might identify you erased, down to the removal of an IP address and timestamp in server logs? Can you demand that even your request for deletion gets deleted?

Will deletion be distinguished from suppression? For example, if you tell a company to never email you again and to remove your address from its databases right away, your request presents a challenge. How can a company ensure that it avoids future mailings to you without keeping a note of your address? Its solution might be to add your address to a suppression list – a 'do not call' list exclusive to that business.

Then there are problems with how you verify the identity of the person requesting deletion. Surely someone will use it maliciously, to erase someone else from the web?

Another difficulty is whether the right can be waived. Chris Conley of the American Civil Liberties Union, in a paper that argues for a right to delete (6-page / 580KB PDF), observes that if website terms can be used to waive the right with a click, the right "is likely to have no practical effect whatsoever". But if it can't be waived, he acknowledges that the right may hinder beneficial projects that involve long-term collection and use of data.

Clearly, some countries have already managed to balance some of these rights and responsibilities. But the problems are technical, ethical and legal. Most of all they are complex, and EU legislators would be fools to write laws covering such sensitive ground in any kind of a hurry.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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