February 2012, European Commissioner Reding revealed the draft of the new data protection regulation of the European Union. Amongst interesting other rights, such as stronger protection of identity against profiling, this draft contains the right to be forgotten. By invoking this right, an individual can force a party to erase all data connected to him. Critics saw this as a shot at the freedom of expression. However, free expression in general and journalism specifically do not need to be harmed by the right to be forgotten.

At this point, we already have a right to see whatever details others have about us. Furthermore, if personal information stored by the so-called data controllers is wrong, we have a right to correct this. However, there is currently not a method to let us be forgotten – given that data was collected in a legal manner. By obtaining such a right, European citizens can require their details to be erased. Of course, there are limitations to this possibility, as one can imagine.

Europe versus America: How the Two Sides of the Atlantic Ocean Think About Free Expression
Quite possibly, the proposed draft regulation of the European Commission uncovers differences between American and European ideas on privacy and free expression. For example, in the United States, the truth can never be limited by a court order. In other words, when someone states something about you that is shameful but true, there is nothing you can do to stop this. However, at our side of the ocean, the truth can still be defamation. Normally, we require such statements to be of general interest. Thus, if it is not of any public interest that those shameful facts about you become common knowledge, you may find the courts at your side.

Being a citizen of the Netherlands, one can expect me to have a deformed view on the world that favours the European tradition. Nevertheless, I will try to explain this view objectively. The main difference lies with the idea what free expression is and when it can be limited. Commonly, the freedom of expression should enable citizens to articulate views and ideas, which is a fundamental building block of democracy. However, whereas there should be no law limiting the freedom of expression in the States, as Elisabeth Zoller (2009) states, the European Court on Human Rights has developed a careful framework in which fundamental rights and their limitations are codified. In practice, this means that in Europe, hate speech, such as calls for racial violence, can be limited, while this is much more difficult in the U.S.

The reason why I prefer the European framework is simple: the freedom of expression should protect people and their opinions, in order to protect democracy. It should not constitute a method to call for violence, stop any advertisement regulation or perform mass manipulation. This is, of course, a fine line. However, the current framework is very strict in what is allowed. Basically, any limitation on a fundamental right has to be effective, proportional, subsidiary, codified and for one of the accepted reasons. This provides many safeguards, which gives it more protection of democracy, in my opinion, than allowing any expression to be broadcasted.

Please Read the Conditions Before Making Statements
As I already hinted before, there always is a fine print when it concerns legislation. In this case, there are exceptions for, amongst others, literary, artistic and journalistic purposes. Furthermore, the regulation states that the freedom of expression should not be harmed by using the right to be forgotten. Those conditions by themselves should disprove any remark that free expression is to be forgotten.

As the right to be forgotten is intended for citizens who, for example, want to leave Facebook, it should not interfere with the freedom of expression. In that sense, this is merely a question of safeguards and balancing the right to privacy with the right to free speech. The best approach is implementing this balance correctly, as the rights should not harm each other, when they work as intended.

The Right to be Forgotten: A Safeguard Against Privacy Infringing Companies
The proposed data protection regulation provides a strong ability to protect your privacy. This creates a preventive force, as Facebook does not want to take the risk of a large fine and, thus, has to implement more measures to protect the privacy of its users. Due to globalisation, privacy has stirred up emotions at both sides of the Atlantic Ocean, making this, in the words of Franz Werro (2009), a transatlantic crash. Nevertheless, it seems that there are a lot of remarks on two rights that should be able to coexist perfectly.

One Response to The Right to be Forgotten Is Not a Threat to the Freedom of Expression

  1. […] European Regulation on Data Protection introduces the right to be forgotten, which I discussed in a previous article (8 October 2012). From a security perspective, this raises the question whether it is possible to get personal data […]

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