Should We Have a Right to Be Forgotten?: A Critique of Key Arguments Underlying This Question

By Tavani, Herman T. | Journal of Information Ethics, Fall 2018 | Go to article overview

Should We Have a Right to Be Forgotten?: A Critique of Key Arguments Underlying This Question


Tavani, Herman T., Journal of Information Ethics


1.Introduction and Background

This paper briefly examines some controversial claims and arguments put forth in the relatively recent debate, mainly in Europe, concerning one's "Right to Be Forgotten" (sometimes referred to as the "Right to Erasure").1 It also examines some implications that this "right" has for protecting personal privacy vis-a-vis the public's right to access information. Note that I do not address the broader issue of whether we have an explicit right to privacy in general.2 For purposes of this analysis, I will assume that we have at least a minimal (legal) right to, or some expectation of, privacy protection, even though such a right/expectation differs significantly for citizens of European Union (EU) countries vs. U.S. citizens.3 My main objective in this paper is to show that the arguments put forth so far on both sides of the debate concerning a Right to Be Forgotten (RTBF) are logically flawed, i.e., defective in terms of their logical structure. I also show why some key assumptions underlying the arguments advanced on both sides are questionable, and also confused.4

We begin with a brief description of some of the historical background and corresponding key events that led to the relatively recent European court rulings on RTBF. In the early 1990s, the EU began to synthesize the various "data protection" laws of the individual European countries. As a result, the EU Directive 95/46/EC of the European Parliament and of the Council of Europe of 24 October 1995 became effective in 1998.5 This directive-henceforth referred to as either the EU Directive on Data Protection or EU Directive-aimed at protecting the privacy rights of citizens in EU nations, while also facilitating the flow of data both within and outside the EU.6 The EU Directive on Data Protection also gives the citizens of EU countries the right to have inaccurate personal information about them removed from the Internet (or at least "de-linked" from search engine indexes). Some European legal scholars and privacy advocates have also interpreted this "right" to entail a right to the erasure/de-linking of online personal information that is no longer deemed to be "relevant."7

The official RTBF debate is now generally considered to have begun in 2010 when Mario Costeja González, a Spanish citizen, requested that some personal information about him, which he believed was no longer "relevant," be removed from Google's list of returns for online searches of his name. Specifically, González petitioned Spain's National Data Protection Agency, requesting that Google delete a link to an article in a Spanish newspaper about his home foreclosure that had occurred 16 years earlier. The Spanish court ruled in González's favor; however, it was not clear at that time whether this ruling should also apply in other EU countries as well.

Google challenged the Spanish court's decision, appealing to the EU's higher courts. The case was then taken up by the Court of Justice of the European Union (CJEU), which presides over all of the EU countries. While many initially believed that CJEU8 would side with Google, the high court upheld the Spanish court's RTBF ruling in its May 13, 2014 decision. The CJEU's ruling on RTBF held that citizens residing in all EU nations have the right, under certain conditions, to request that Internet search engine operators (ISEOs) remove links to some kinds of personal information about them.9

Not surprisingly, the EU court rulings on RTBF, and the intense debates leading up to CJEU's final decision, have had some international implications, especially for non-European ISEOs and ISPs (Internet Service Providers) operating in the EU. A number of arguments have been advanced by representatives of organizations on both sides of the debate. To date, however, each of the arguments put forth, i.e., either to reject or defend RTBF, can be shown to be (logically) fallacious. What, exactly, does it mean to say that an argument is fallacious (in a logical sense)? …

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