The Corliss Group Latest Tech Review: ‘RIGHT TO BE FORGOTTEN’

While I find the Right to be forgotten’ law/precedent interesting and even convivial, the fact remains that such a law may have grave implications on our society. By society, I mean the global village we find ourselves in today and the throng of imperfect, inadequate and sometimes inhuman inhabitants (e.g. BH), we find within this space.

Undoubtedly, we all have things and phases of lives we would like forgotten, but for the greater good of society this might not always be appropriate and fair to all parties concerned – particularly when the action in question impacts on others directly.

The question is this, ‘does the right to keep an information private/hidden/and away from public eye supersede the right (Freedom) of the public to that information?’

The ‘Right to Forgotten’ Law recently came under fire and into proper scrutiny on May 13, 2014 when search engine (research) giant, Google (GOOG) lost a data privacy suit against it at the European Court in Luxembourg.

The European Court of Justice in its ruling confirmed that an EU law exists which allows citizens to claim a “right to be forgotten” stating that Google is bound to obey this law and must enforce it.

The court’s ruling established that armed with a “right to be forgotten,” an individual can make a request to Google, asking it to remove information about them from its search guide. This request could be pictures displaying youthful exuberance, moments of indiscretion, offensive comments on a social media website, malicious allegations, old publications of financial impropriety, links to old debts, notifications of court orders, unfavourable court orders, company filings, etc.

This precedent laid down, which currently applies across the EU, now forces Google and other online publishers to handle all information received differently.

Holistically speaking, the law imposes on Google, the duty/obligation to manage content on its servers and links. Google is effectively responsible for content, even if it was simply processing it on its servers and presenting links. If it receives a legitimate request to delete information on those servers, it must do so, even if that information is still published legally on the internet.

After the ruling, Google Inc. (GOOG) has had consultations with data-protection regulators and just two days ago, Friday May 30th, 2014 the company came up with an online tool to remove personal information where the need arises. The new web form allows citizens in 28 European countries to request the Google search platform to remove results for queries that include their names where those results are ‘inadequate, irrelevant, no longer relevant, or excessive in relation to the purposes for which they were processed.’

Interestingly, the arguments for and against this law and the decision of the court, has been diverse and far-reaching beyond the EU.

In the United States of our America, where the scales are tilted in favour of Free Speech and Freedom of Information, as against the right to privacy, observers and critics actually consider the ruling a “Blow” against free speech.”

Nigeria on the other hand, currently has no significant Data/information or Privacy protection law (An Act). Whilst our Constitution (Constitution of the Federal Republic of Nigeria, 1999) provides for our Right to Privacy in Section 37, it is not far-reaching enough to cater for Data/information protection abuse. Nonetheless, certain precedents such as the case of Ariori v. Elemo (1983) 1 SC 13, which attempted to take care of this, by establishing public interest over and above private interests.

Data protection involves strategic measures to manage and safeguard the unauthorised access or use of data, and efforts at enacting an appropriate data protection law in Nigeria – one that is far reaching, has met with great hurdles after seven attempts.

The first attempt was in 2005 – a bill for an Act to provide for Computer Security and Critical Information Infrastructure Protection Bill was proposed; the next was the Cyber Security and Data Protection Agency Bill 2008; followed by the Electronic Fraud Prohibition Bill 2008; the Nigeria Computer Security and Protection Agency Bill 2009; Computer Misuse Bill 2009 and the Economic and Financial Crimes Commission Act (Amendment) Bill 2010, and again the Cyber Security and Information Protection Agency Bill 2012, which has gone through its 2nd reading.

Speaking on the issue, Anti-Counterfeit expert and Partner in charge of Brand Protection, Media and Entertainment Practice at commercial law firm Jackson Etti & Edu, Obafemi Agaba, notes that a privacy law or precedent such as the “Right to be Forgotten” ruling handed down against Google, should ordinarily take into consideration public safety and interest.

In his view, “whilst we have no set privacy laws in Nigeria, an individual can have recourse under the fundamental rights provision in the 1999 constitution as well as in common law. I also believe that a Data Protection/Privacy law in any part of the world should take into consideration the good of the public and their right to know.”

He continues, “That part of an individual’s life which directly affects or impacts the public should be left open and accessible to the public. As a legal practitioner and a privacy expert, I always advice my clients about the position of the law where the individual’s interests conflicts with that of the law,” he concluded.

However, Mena Ajakpovi an expert in Commercial litigation, whose clients range from public officers to artists and star entertainers, believes that there must be an “established’ overriding statutory public interest” before such data can be considered ‘NOT PRIVATE’ and made accessible to the public.

Citing the case of Ariori v. Elemo, he explains, “In the face of that responsibility, if pulling down or removing that information or data by an individual pre-disposes him/her to commit that an offence or infringing on the right of another.”

The critical issue however, is striking that balance between allowing individuals control of their online presentation and ensuring that the system is not abused to remove stories in the public interest.

While Civil rights and Public Interest advocates continue to express concerns as to who has the role of deciding what is in the public’s interest, another Nigerian Legal Practitioner, Ayodele Oni does not think it is Google’s role or any other Search engine to make public an individual’s private information that he/she wants hidden or kept private from public eye.

Hear him, “It is trite (commonplace) that a person is not entitled to a reputation he or she does not have. That said, to the extent that there are other records publicly available, I believe that persons can request a firm like Google to delete their offensive records. Where anyone needs to conduct a criminal check, then they can visit bodies statutorily empowered or obliged to keep same (e.g. the Police or the EFCC) and not firms such as Google etc.

“We need to work on our data storage and keeping system in Nigeria like the credit bureau newly established in Nigeria. So for credits now, there is now typically a credit record check. We can adopt that for other issues such as criminal, bankruptcy and the likes,” he said

Situations where data protection might be overlooked are found in legislations such as the European Convention on Human rights, which allows access to a government agency or public authority in a democratic society – but must only do so where it is absolutely necessary and is in the interest of national security, public safety, the economic well-being of the country, the prevention of crime, or for the protection of the rights and freedoms of others.

In the weeks that have passed after the ruling, the questions persist. Questions that bother on, “What happens when a budding politician with a criminal conviction or unsavory public comments that are mentioned in an online post wants it removed? Would it be right for content censorship to clear the path to them becoming a public figure? What happens to the fiancée of a convicted fraudster who may be deprived of the right to see information relating to their past because he/she has asked for it to be removed from Google searches or any other search platform?

As they continue to lament the implication of the ruling, FOI proponents and promoters believe that it has set an unusual and unwelcome precedent, whilst describing it as radical.

Google has confirmed that since the ruling was announced a few weeks ago, they have received thousands of requests, including a scandal-hit politician, a paedophile convicted of possessing images of child abuse, and a doctor who wanted negative reviews of his practice removed.

One thing is certain though, ‘Reputation Managers’, ‘Publicists’ or whatever they are called these days, are having a field day now.

But the question remains…..TO KNOW OR NOT TO KNOW. What Prevails?

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