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The Right to be Forgotten

-Examining the Relationship Between Memory and Forgetfulness on the Internet-

Hiroshi Miyashita
Associate Professor, Faculty of Policy Studies, Chuo University
Areas of Specialization: Constitutional Law, Comparative Constitutional Law, Information Law

*The paper “The Right to be Forgotten” by Associate Professor Hiroshi Miyashita is printed in high school textbooks for Japanese (2018 academic year). (Modern Japanese B (Revised Version); Selected Modern Japanese B (Revised Version) (Sanseido)).

1. The Internet never forgets

People forget. However, the Internet never forgets.

Once our information is posted to the Internet, the information immediately spreads and continues to exist nearly permanently. You might post a photo of you and your friend on Instagram, send a Tweet about your day, or use Google to search about a person whom you plan to meet tomorrow. Our behavior is recorded in a digital environment on a daily basis. Behavior remains on the Internet and becomes subject to searches.

Although the Internet has made life much more convenient, it also raises various legal problems involving privacy. Some examples of problems include searches performed for reports of minor crimes committed many years ago, photos taken in one’s school days being used in a way that harms future employment prospects, and being subjected to discrimination, prejudice, or bullying due to the disclosure of information on one’s private life. When using the Internet, our daily life is recorded in a digital memory. This hinders the forgetfulness which is an inherent aspect of human beings.

2. The right to be forgotten

Today, discussions are being held throughout the world in regards to the right to be forgotten as pertains to personal information that remains on the Internet and continues to spread. The right to be forgotten is the right to request erasure of one’s own personal data from search engines, etc., under the certain conditions.

In the European Union (EU), a case arose regarding whether to acknowledge a Spanish man’s claim for erasure of his personal data. Specifically, about 16 years ago, the man’s real estate property had been auctioned due to his failure to pay social security fees. An article on this matter had remained on the Internet. On May 13, 2014, the European Court of Justice in its judgement referred to the right to be forgotten and recognized the right of erasure for personal data displayed on search engines if said information was deemed inadequate, irrelevant, no longer relevant, or excessive. The Court acknowledged the right to be forgotten from the Internet as pertains to the private information of the Spanish man, a private individual.

3. Europe

In twentieth-century Europe, the Nazis recorded personal information on punch cards. The information was used to find and massacre a large number of Jews. Out of remorse for this dark history, Europe has developed legal systems for strict protection of privacy under the principle of human dignity.

The EU has clearly stipulated the right to be forgotten in the EU General Data Protection Regulation (GDPR) that will enter into force on May 25, 2018. This Regulation recognizes the legal right to request deletion of one’s own personal information if said personal information is not required, if the individual in question withdraws agreement, etc.

Following the aforementioned judgment by the European Court of Justice, search engine service providers based in the EU region received more than 2.4 million requests for deletion from Internet website pages. Deletion was performed for about 43% of those requests (according to Google’s transparency report, as of March 2018). For example, erasure was performed when a website remained that posted a certain woman’s address, but deletion was not performed for a website reporting on medical malpractice by a certain doctor. The EU announced standards for erasure, which shows that, in particular, it is easier to delete information on minors and crime victims, as well as information that may result in prejudice.

In this way, Europe has considered it inappropriate for a private person to become a subject to Internet search or to an arbitrary self-image to be created solely from search results, emphasizing the priority of human dignity.

4. America

America levied heavy criticism on Europe for the movement to support the right to be forgotten. The American legal system is based on the liberty of individuals. In this system, even information related to the privacy of an individual should be examined as part of freedom of expression. In other words, under the powerful tradition of freedom of expression in America, information that is related to the truthful or newsworthy information should basically be disclosed—even if the information is private.

Freedom of expression in America also extends to search engine providers. Search engine providers do not create new private information; instead they possess functions to spread information from existing websites. For example, even if a weekly magazine that violates privacy is sold in a bookstore, it is the publisher who is responsible for that violation, not the bookstore. The same concept applies to the Internet. Search engine providers themselves are not violating privacy, and laws exist which give immunity regarding acts of spreading information in principle.

Expression can generate emotions including happiness, anger, sadness, and excitement. Removing only anger and sadness from any expression and deleting related information create the danger of reducing the value of self-realization through expression and preventing the growth of a democracy. In America, the right to be forgotten causes a conflict with freedom of expression. It is therefore difficult to acknowledge this right.

5. Japan

Japan also has judicial precedents regarding the erasure of personal information which has continued to remain on the Internet. For example, on December 22, 2015, the Saitama District Court acknowledged the right to be forgotten from society as pertains to past criminal history. The Court approved the deletion of crime-related information on the Internet. However, the Tokyo High Court overturned this decision and ruled that requirements and effects of the right to be forgotten were unclear.

On January 31, 2017, the Supreme Court ruled that erasure of information from search results is permitted if the legal interest of not disclosing private information obviously outweighs the reason of providing said information of a search result. The case in question was disputed whether or not it was possible to erasure information written on a BBS in regards to the arrest report of a man who had engaged in child prostitution about 5 years ago. The Supreme Court did not permit erasure of these search results because the legal interest of not disclosing the information did not clearly outweigh the reason of providing the information of a search result.

Comparison of privacy rights and freedom of expression has been examined through a variety of judicial precedents. However, the relationship between these two concepts is being questioned anew in the Internet age. There is the possibility that the decision of the Supreme Court could be interpreted as giving heavy consideration to the characteristics of freedom of expression among search engine providers within the modern context of the Internet.

Conversely, there are judicial precedents in Japan which acknowledge the benefit of certain types of forgetfulness. For example, there was a case in which a weekly magazine published a graduate album photograph of a pre-debut entertainer (Tokyo High Court; April 26, 2006), a case in which a weekly magazine published an article on a former adult actress who had retired 5 years ago (Tokyo District Court; July 24, 2006), and a case in which a weekly magazine published an article on the past intimate relationships of a certain enka singer (Tokyo District Court; December 10, 2007).

According to the status of human rights violations in 2017 as announced by the Ministry of Justice, the number of new remedial procedures being started for privacy-related cases is increasing annually. The number has now reached 2,705 cases (including 1,998 cases related to the Internet). This means that at least 7 new cases are filed every day by people seeking remedy from privacy violations. In Japan, there is the need for effective measures in regards to protection of privacy on the Internet. Although some search engine providers have announced voluntary erasure standards, it is necessary to thoroughly discuss the creation and operation of unified standards for application in the future.

6. Examining the relationship between memory and forgetfulness

In modern Internet society, where tension exists between human forgetfulness and digital memory, how should we face the Internet? People throughout the world are facing the same problem, and discussion on the right to be forgotten is becoming a universal theme. On the other hand, privacy may be significantly influenced by the culture and social norms of each country or region.

Today, conflict exists between memory and forgetfulness on the Internet. Based on deliberation being held in America and Europe, Japan must clarify its own unique position on the form of privacy rights and freedom of expression.

Hiroshi Miyashita/Associate Professor, Faculty of Policy Studies, Chuo University
Areas of Specialization: Constitutional Law, Comparative Constitutional Law, Information Law
Hiroshi Miyashita assumed his current position after completing the Doctoral Program in the Graduate School of Law, Hitotsubashi University, obtaining a PhD in Law, serving as an official in the Office of Personal Information Protection, Cabinet Office, and serving as a Visiting Scholar at Harvard Law School.
Major written works include: Control of Big Data and Privacy Crisis [Biggu Deta no Shihai to Puraibashi Kiki] (2017, Shueisha Shinsho), Case Studies on Privacy [Jirei de Manabu Puraibashi] (2016, Choyokai), Restoration of Privacy Rights: Collision of Freedom and Dignity [Puraibashiken no Fukken: Jiyuu to Songen no Shoutotsu] (2015, Chuo University Press) (received the 31st Telecom Social Science Award), and Policies on the Protection of Personal Information (2010, Choyokai).
*Please also refer to Chuo University: The Corridor of Knowledge No. 111 “The Right to be Forgotten (production supervised by Hiroshi Miyashita).new window