The right to be forgotten

Regulators have been wrestling with this issue in terms of the processing of our personal information. I first came across the issue of data protection when I served as a Freedom of Information Officer during my early years in the civil service. One of the things I became very aware of very quickly was that data protection was – is – a very complicated subject. It was only after attending a workshop with senior counsel from Pinsent Masons did I finally get my head around the basics of how it worked.

However, it’s been over a decade since the last data protection act was enacted. Since then, the phenomenon that we know as the internet – and through it, social media, have exploded into the public sphere. This blog post isn’t going to go into the complex and detailed arguments of interpreting data protection guidance; this post is about the more practical side of data protection and the right to be forgotten. With good reason.

We are now entering a time where school leavers will be moving into the workforce (youth unemployment issues aside) where internet access and social media are the norms. How these young people have used the internet in the past will have been logged and documented across a huge number of websites. A survey in 2008 covered the issue of employers checking social media statuses of applicants. It’s also not just what people put on the mainstream social networking sites. What about message boards?

It doesn’t take long to find newspaper articles of employees misbehaviour snapped on social media websites. In terms of the colourful pasts of politicians, it’s generally part and parcel of going into politics – whether you deal with it as Louise Mensch did earlier this year by turning the tables on her accuser, or as David Cameron did regarding his Bullingdon days.

But it’s not just about what we do, it’s about what we say – especially online. Think about it this way. Imagine every conversation you had ever had in a social environment – e.g. the pub or on a night out – had been recorded, transcribed and uploaded to the internet. With so many people being regular users of various different types of social media, there’s a newspaper headline for all of us – whether it’s with what we did or what we said. A number of people I have spoken to who have said they would otherwise love to go into politics have said that they are not even going to consider it because they feel that they have both too many ‘skeletons’ in their closets and/or have such a big digital footprint that make up a goldmine of ammunition to be used against them.

What is the solution?

I have no idea on this one. The big tension is wanting/needing to maintain and retrieve the wealth of information for historians of the future amongst a myriad of other reasons, vs the detrimental impact that our huge digital footprints (that have in part been formed during our formative years) have on affecting what we choose to do in the future. Should message boards and social networks have some sort of ‘expiry date’ on comments – where they are automatically deleted? Should they be archived and locked away as with the official censuses? How would you enforce these in a phenomenon that is global? (i.e. Who would write and enforce the rules?)

What is clear is that, as with a growing number of other issues, this one transcends single national governments.

2 thoughts on “The right to be forgotten

  1. I wonder if it would work to say as a norm that hosts delete sites / content / accounts after, say, 2 years if they’re unused (eg two years since a tweet was sent). There could be a way to signal you want something to stay up longer (e.g. a photolibrary, which might prompt you every 2 years whether you want to renew (requiring a positive confirmation by, say, 3 months).
    Would seem like a similar timescale would be good for a required renewal of marketing emails. sounds much better than me having to try to remember my login details to a site which used an email address I no longer have as confirmation to delete my records.)

  2. My view on this is that society will have to adapt; we will have to become more tolerant of people’s pasts and genuinely more accepting that people can change (and that what people do in one aspect of their lives doesn’t necessarily affect another).

    One particularly interesting and important area is the rehabilitation of criminals. At the moment it would be hard to justify publishing the details of someone’s spent convictions, or say the fact they were given an ASBO many years ago; such information would be considered sensitive personal information under the Data Protection Act. (A very strong justification would be needed for publishing it using the journalism exemption .)

    If we had a open court system with the court records (the court registers) openly published online, something I’d like to see, it would be easy to find out about someone’s past convictions. As it is though we don’t and its only some cases and convictions – those which have been reported in the press – which are generally easy to find out about online.

    We’re clearly not going to start requiring libraries to cut stories reporting sentences out of physical copies newspapers after a period of time has elapsed; so I think it would be wrong to require online publications to redact their archives. In any case I suspect any such effort would be futile – it is very hard to reign material back in once it has been published online. I don’t think we should treat online material any differently to that (historically, or currently) stored on paper, even though technology is making archive material more easily accessible.

    I don’t think we should try and hide, or delete, people’s pasts; but instead accept them and treat them appropriately.

    At the moment the legal position in the UK is unclear, and in my view rather bizarre. For example the information tribunal has ruled against the release of old information about ASBOs which it would have been acceptable to publish contemporaneously:

    http://www.out-law.com/page-8775

    It appears that some aspects of UK law have different concept of what amounts to “publication”; libel law treats every new web-page served or issue of a book published as a new publication whereas in terms of data protection the information tribunal appears to give weight to when something was first published.

    I think the law needs improving in this area. I think the right approach would be to focus on what information may, or may not be taken into account when in relation to key decisions such as those relating to employment, housing etc. But while laws will be needed as a backstop/safeguard the real change will have to come from society as a whole, most of that will I think come naturally, though it may need to aided by education (perhaps focused on older, rather than younger people!)

    Richard Taylor
    Cambridge
    http://www.rtaylor.co.uk

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