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Privacy Commissioner no fan of “right to be forgotten”

New Zealand’s Privacy Commissioner has weighed into the increasingly controversial international debate on whether we have the “right to be forgotten” on the web.

The debate was sparked in May with a ruling by the European Court of Justice on the case of a Spanish lawyer, Mario Costeja Gonzalez.

Gonzalez sued Google because when he typed his name into the search engine it came up with links to a 1998 newspaper article about his financial problem. These were, he argued, now irrelevant and misleading.

The European court agreed and, on May 13, told Google in Spain to take the links down.

On the surface, this seems a reasonable judgment. Surely we should all have the right to disassociate ourselves from mistakes we have made in the past? After all, New Zealand, like many other countries, has “clean slate” provisions, recognizing an individuals right to have more minor convictions wiped off their record after a certain length of time.

Would it be fair, for example, for John Banks to be bugged by the Famous Ear Wax Incident into his declining years?

However, much of the commentary on the Spanish decision has condemned the ruling.

“Watch out for silent encroachments”, warned the UK’s Economist magazine. Closer to home, the South China Morning Post called the ruling “ominous” and cautioned: “The Europeans have screwed up. Let’s not follow their example.”

The naysayers use three main arguments.

First, implementing a right to be forgotten is unworkable. You might take down a link between John Banks and earwax in New Zealand, but it wouldn’t take a master hacker to access it via the US, or Estonia. After all, it’s not that hard to sign on to Netflix, and that’s blocked in New Zealand.

Second, the ruling is woolly. The EU decision allows an individual to attempt to get rid of information on the web that is “inadequate, irrelevant, no longer relevant or excessive”. The Two Johns involved in the Teapot Tapes could well argue in 10 years’ time that links to press reports were irrelevant, but social history would be the poorer for that decision.

And anyway, as Kensington Swan privacy specialist Hayden Wilson argues, it’s not as if the EU ruling prevents people accessing the original 1998 Spanish press clipping. It’s only the Google link that has been deleted.

“The information was always there to be discovered. All we are actually talking about is that in the present day, information is so easily accessible.”

The third argument is that the right to be forgotten might help rich, dodgy guys get rid of information they would prefer not to be available.

As the Economist put it “It would hamper anyone interested in finding out inconvenient truths about those who would like their past covered up.”

Fraudsters, child molesters or loan sharks, for example.

Today, New Zealand’s Privacy Commissioner, John Edwards, has weighed into the debate. Interestingly, he too is on the side of freedom of information on the internet.

Describing the right to be forgotten as “inaccurate, imprecise and impossible”, he said applying the ruling to the New Zealand context would be tricky and would require clarifications of several points in our Privacy Act.

“I am going to leave these questions until I am presented with an actual case to apply them to,” he said.

“There are many other authorities around the world grappling with the same difficulties.”

Indeed. It seems the Europeans have put the cat verily among the pigeons. Edwards said New Zealand put the right to be forgotten on the agenda for discussion at last week’s Asia Pacific Privacy Authorities conference in Seoul last week, and a working group will report back in December.

Meanwhile, the commissioner is watching international developments closely, and probably hoping desperately he doesn’t get asked to make a New Zealand decision.

“It may be that Parliament is the better forum to determine the appropriate balance between freedom of expression, the freedom to seek and impart information – both of which are guaranteed in the New Zealand Bill of Rights Act.

“Perhaps an international solution should be found. [However] that may be optimistic, given that reconciling American and European approaches to the issue might be akin to squaring the circle.”

Hayden Wilson agrees it shouldn’t be the Privacy Commissioner’s job to decide whether we should or should not get the right to be forgotten.

“He is rightfully worried that someone will think it’s a good idea to ask him and he will have the impossible task of dealing with it.

“It will probably have to be Parliament to give the level of clarity that is needed.”

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