The right to forget or the right to spin?

Viviane Reding has been publicising one of the more poetic planks of the upcoming Data Protection Directive reforms, the so-called "right to forget" or from the French (who dreamt it up), the droit a d'oubli.

The right to forget is intriguing and seems to have caught the public attention of more than geeks and DP nerds. In boring Anglo-Saxon, it sounds much less exciting. The right to delete your personal data, wherever it is held - eg on Facebook - is what it's about. Put that way it doesn't sound that new. After all the DPD already gives you the right in art 14 to

" object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data;"

In the UK DPA 98, s 10, that gets translated as the right to stop processing where it is "causing or is likely to cause substantial damage or substantial distress to him or to another" and this is "unwarranted". As often the case, there is an argument that this is a rather limited expression lof the DPD, especially when case law is considered. There's also a connected right to demand your personal data is not processed for the purposes of direct marketing.

But this doesn't add up to an unqualified right to have data deleted nor to have this done for no reason at all, except it's your data. This is what the "right to forget"or "delete" movement is about.

Pangloss initially found the right to forget very appealing, but has got more conflicted as time has gone on. The trouble most often cited is that your personal data is very often also someone else's personal data. If I post a picture of both of us at a party on FB, do you have the right to delete it? What about my freedom of expression, my right to tell my own story? With pictures, you can imagine solutions - pixellate out the person objecting or crop it. Perhaps the compromise is that I have the right to post the photo but you have the right to untag yourself from it. (Though this will not suit some.)

But what about where I say "I was at Jack's last night and he was steaming drunk?" Does Jack have the right to delete this data, even if it's on my profile? This is where the Americans start indeed to get steamed up - since their culture and legal system has repeatedly preferred free speech to privacy rights.

Unsurprisingly this is one of the the scenarios Peter Fleischer, chief privacy officer of Google, had in mind when he described the right to forget last week as "foggy thinking ", claimed that "this raises difficult issues of conflict between freedom of expression and privacy" and more or less implied that this could be dealt with perfectly well by traditional laws of libel. In an ideal world this might be so: but we don't live in that world, but one where ordinary citizens as opposed to celebrities, almost never get to use laws like libel because they're simply far too costly and scarey.

Would Jack sue for libel in the above example? No, almost never. But he might ask FB to take it down (if he was aware it existed). This is another of Fleischer's worries - that intermediaries like ISPs and hosts would get inextricably and expensively involved in the "right to forget". Here his real agenda becomes fairly apparent - Google's success is entirely based on their right to remember as much as possible about us. We are back here in another version of the cookie and data retention wars, passim.

I am a fan of the Google chocolate factory, as anyone reading this blog will surely have gathered - but it is a mite disingenous to read Fleisher's (beautifully written) post without bearing in mind what seems to be Google's real worry, as cited at the bottom of his list, that search engines will find themselves called on to implement what people often want far more than a right to delete, namely a "right for their data not to be found" - ie, for it to be expunged from Google's web results.

Fleisher says correctly (and commendably under-statedly) that "This will surely generate legal challenges and counter-challenges before this debate is resolved. ". Imagine the reaction of Trip Advisor for example when 1000s of people who run hotels and restaurants try to have the site removed from Google rankings because it has personal data about them that they're not overly fond of..? More sympathetically, many readers of this blog will know decent people who have tried for years to get results removed from Google - unfair and illegitimate reviews, catty remarks from ex partners, professionals whose working life is blighted by abusive remarks by disgruntled ex clients. There should I think be clear remedies for them not dependent on the ad hoc discretion of the sitein question, depending on what mood it's in that day. On the other other hand, I don't want a world where politicians or demagogues can get their dodgy past involvements with fascism or the BNP or whatever quietly deleted or rendered unfindable on Google (this is a turf war which already goes on day in day out on the edits on Wikipedia).

A big problem (as with all DP issues) is the cross border, applicable law or jurisdiction aspects. Fleisher's column cites a rather sensationalist example - when a German court ordered references to a murder by a German citizen removed from a US based Wikipedia page because those convictions under German law were "spent". In fact rules about rehabilitation of offenders and spent convictions are common - certainly the UK has similar - and all that is unusual about this case is the attempt of the German courts to extend jurisdiction to publications hosted abroad. Indeed as some US states have "rights of publicity" protecting celebrity image and some don;t, one imagines they must already have evolved a degree of expertise in the international private law of privacy/publicity rights. (What if Elvis's image on tee shirts is protected in Tennessee but not in Virginia? can the Tennessee estate sue the Virginia t shirt factory that uses his image without paying?)

But certainly an EU right to forget will almost invariably engage us in the same kind of angst and threats of "data wars" over extraterritoriality that the Eighth DP Principle on export of personal data already has - not something to look forward to. It is noticeable that Reding fires off an early salvo on this when her spokesperson says , not for the first time, that companies "can't think they're exempt just because they have their servers in California or do their data processing in Bangalore. If they're targeting EU citizens, they will have to comply with the rules."

In reality , Pangloss suspects any right to forget that makes it through the next few years of horse trading will look much more limited and less existential than most of the ideas in the blogoverse - more like the right FB has already conceded, to delete rather than simply deactivate your profile, for example. Reding's speech itself seems to be in practice more about how FB sets its defaults than anything else: a default opt out from letting third parties tag your photos, rather than opt in, would seem a pretty limited and sensible demand.

Being more aspirational, Pangloss still has a soft spot for one interpretation of the "right to forget" which Fleischer rather derides as technically impossible - self expiring data. I'd love to hear from any techies who know more about this topic.

But the debate that has caught the public imagination goes wider than just DP law, and it is about whether we want to live in an online spin society.

There has been a certain amount of information coming out lately about how the Internet is not what it once was. Once we thought the Web was a conduit to unmediated news and opinions from real people, that it would enable direct democracy and change the world. But recent evidence has been that when it really matters - in matters of politics and revolutions and celebrities and ideology - a lot of what seems to be the "honest bloggers" or commenters or posters are actually paid spinners, employed and trained in the blogging and astro turfing schools of China and Russia and Iran and now, we hear this week, the US.

The right to forget can in some ways be used as the individual, non corporate, non state version of this. Rewriting history has been described by many people as Orwellian: we are at war with Eastasia, we have always been at war with Eastasia. That is chilling (in all senses of the word, including speech :-). The reality, as I already said, is likely to be consideringly less overwhelming (or effective). But this is still a debate we need to start having.