The further the "Right to be Forgotten" (RTBF) online progresses from its original creation by Europe's Court of Justice, the broader and more damaging its ramifications seem to be. The latest attempt to insert it is a rushed proposal in Uruguay. The complaints of multiple digital rights groups across Latin America show how unwise the Uruguayan proposal is—and how vexing efforts to adopt the right can quickly become.
The Court of Justice of the European Union (CJEU) started the current rash of RTBF proposals in 2014 by injecting the spirit of the "droit a l'oubli" laws of some of its member countries into pre-existing, European Union-wide, data protection law. The court's decision in the case was aimed at Google’s search results, though it applied to all search engines, and required them to de-index web pages from search results at the request of individuals when those pages contained personal information that was "out-of-date, inaccurate, or irrelevant.”
The CJEU sought to address a serious problem in recognizing a Right to be Forgotten. Many jurisdictions recognize that the easy discovery of past bad acts—for example, the records of past convictions when the perpetrator has been rehabilitated—can cause lasting and disproportionate harm. But working out how to map these concerns to the modern era is a serious challenge: one that involves balancing the benefits that the CJEU recognized, with the dangers to free expression, including the dangers of obscuring facts from our online historical record, and of granting individuals a general right to control how conversations about them are conducted online. No matter how carefully the Right to be Forgotten might be defined, conflicting principles of due process and free expression, inevitably render it a thorny and contested task.
Since the CJEU's ruling, we've seen some of these paradoxes play out within the EU. Can publishers be informed by search engines if their articles are suddenly removed from the index? No, says Europe’s data protection authorities, because that would violate the privacy of the individual making the request. Are the criteria by which RTBF takedowns are decided judicially or made by private actors? In Europe, it's not the courts who make the initial determination, it's the search engines. Even in its home jurisdiction, the right remains a controversial and imprecise tool.
Concerns like these also play out in South America, where memories of attempts by authoritarian regimes to re-write history are still fresh, and Right to be Forgotten remedies have been pursued by powerful figures and celebrities who seek to erase controversial pasts.
In 2014, Argentina’s Supreme Court denied model María Belén Rodríguez’s request to delete content arising from search results associated with her name. Belen Rodriguez filed a claim for damages against Google and Yahoo Argentina, arguing that the unauthorized use of her image violated her rights by linking it to online erotic content. The Supreme Court held that search engines had no proactive monitoring obligations when it came to third-party content.
In Mexico, the National Institute for the Access to Information (INAI) granted Carlos Sánchez de la Peña's request to have three links removed from Google search results. One of the pieces Google was ordered to de-index, published by Fortuna Magazine, featured the transportation magnate’s fraudulent operations and suspicious benefits his company had received from Mexico’s government. This decision was overruled after being challenged in court by the magazine, represented by the digital rights group R3D.
In Peru, investigative journalism portal Ojo Público shed light on how complaints to administrative and judicial authorities had been used to censor websites, including search engines, from revealing organized crime. “Right to be Forgotten” claims using the country's data protection law were filed by prominent figures in organized crime, a former minister of State, and an ex-president of the Supreme Court.
The risks implicated in RTBF claims were also stressed by the Colombian Constitutional Court in a ruling that rejected a citizen's de-indexing request. In a legal action against El Tiempo, the main newspaper in the country, a Colombian citizen argued that her right to a good name and privacy were violated in the publication and subsequent indexing by Google of a newspaper article, in which El Tiempo said that she participated in an alleged crime (which reached the prescription period before being ruled.) The court refused to order the search engines to de-index the content because it would constitute a form of prior control and turn the search engine into a censor of user-posted content. That, in turn, would undermine guiding principles of Internet architecture: “equal access, non-discrimination and pluralism.” However, the court required El Tiempo to update the published information and use robots.txt and metatags to prevent the indexing of the content by Google, raising equally complex free expression concerns.
The controversial nature of the Right to be Forgotten, and the challenges of creating statutes that can withstand constitutional scrutiny has, it seems, been overlooked by Uruguay’s new administration. The country’s newly controlling National Party released in late January a draft urgency law (Ley de Urgente Consideración) to be proposed once the new president takes office on March 1st. With over 300 articles, the Right to be Forgotten provision stands out. If approved, it would let anyone request that search engines de-index data and delete social media posts with their personal information, “at a simple request,” even when published by third parties. It would apply to information the person deems inadequate, inaccurate, outdated or excessive. Inadequately addressing conflicting rights and line-drawing intricacies, the proposal contains only a clause stating that "public interest should be taken into account." Urgent bills proposed by the President pass automatically if not rejected or substituted after 90 days, as per the country's constitutional rules.
Uruguay already has a strong and comprehensive data protection law. The right of erasure is a crucial component of data protection law, but it should not be a shortcut to silence legitimate speech. Moreover, speech potentially violating honor, image, and privacy are already subject to specific rules.
Uruguay's government should not presume that implementing a so-called Right to be Forgotten is simple, and drop the attempt to a rushed adoption of an ambiguous and risky law.