In Europe, data protection includes the “right to be forgotten,” which means that people living in the European Union can ask that internet search engines delist or dereference a piece of information that they consider to be inadequate, irrelevant or no longer relevant, or excessive. This would remove the search result and link to the information from the search engine’s inventory, essentially breaking the link between the individual and the information. This doctrine potentially includes extraterritorial application, which means it could have impacts beyond the borders of the EU.
To discuss the implications of Europe’s “right to be forgotten” on Latin America’s freedom of expression and anti-corruption efforts, the Inter-American Dialogue published a report by Catalina Botero Marino (dean of the Faculty of Law at the Universidad de los Andes), Michael Camilleri (director of the Peter D. Bell Rule of Law Program at the Inter-American Dialogue), and Carlos Cortés (former director of public policy for Spanish-speaking Latin America at Twitter) titled “Democracy in the Digital Age: Freedom of Expression in the Americas and Europe’s ‘Right to be Forgotten.’” This report was discussed at an event hosted in partnership with the Universidad de los Andes, the Inter-American Commission on Human Rights, and the Special Rapporteur for Freedom of Expression on November 15 at the Inter-American Dialogue. Along with the report’s authors Botero and Camilleri, panelists included Edison Lanza of the Organization of American States Special Rapporteur for Freedom of Expression, José Luis Piñar, of the Universidad San Pablo CEU at Madrid, and Romina Mella of IDL-Reporteros.
The panel event, called “Corruption, Internet Freedom, and Online Privacy in Latin America,” explored the concept of the “Right to be Forgotten” in the context of Latin America, considering the tension between privacy and transparency, and how European privacy standards can be adapted for the Americas.
Botero gave an overview of the report and described how the internet has been an important tool in the fight against corruption because it preserves human memory. She then expressed the view that the criteria for delisting information are too broad, which may result in the removal of relevant information for corruption inquiries. Botero suggests that information only be deleted if it has caused substantive damage to an individual.
Camilleri laid out the four recommendations offered in the report:
- Confront the problem. This issue should be faced with open and rigorous debate informing the policies around the exclusion of information on the internet.
- Rely on existing Inter-American standards. Standards in the Inter-American system should be applied in order to reflect the liberal tradition of the Americas.
- Initiate a transatlantic dialogue. Dialogue across the Atlantic should be initiated given the impacts this doctrine will have beyond the EU.
- Identify alternative solutions. Due to the issues associated with the “right to be forgotten,” alternate legal and technological solutions should be identified.
Taking up Botero’s earlier point, Lanza commented on the effects of the doctrine on corruption, journalism and the media, and the preservation of history. He stated that delisting information would allow individuals to clear their pasts in cases of corruption. It also damages access to information for the public as well as for journalists and the media, urging that human narratives preserve history. When those narratives are erased, so is documentation of history.
Piñar provided a European perspective on the matter, stating that privacy and transparency are not incompatible. He asserted that half of the requests to delist information are not granted. The “right to be forgotten” was adopted to prevent governments from having information about private citizens that could be used in a harmful way. However, he agreed with the importance of a transatlantic dialogue to find an appropriate balance.
Mella closed out the conversation with her concerns that politicians might use the doctrine to challenge reporters that do not cover them favorably by hiding certain information. Mella is concerned that this will have great impacts on the protection of journalists, impunity and censorship.
Read the recap and watch the recording of the event here.
Download the report here.