1. Analyzing the EU’s “right to be forgotten”
Presentation by: Alyah Khan
Photo courtesy of Flickr CC

2. Client
• Analysis conducted on behalf of European
Digital Rights (EDRi), an international
advocacy group headquartered in Brussels,
Belgium.
• Goal of EDRi: Protect digital civil rights in the
information society.

3. Purpose of report
• Analyze the feasibility and effectiveness of
EU’s proposed “right to be forgotten”
• Examine policy’s scope, applicability and
potential impact on freedom of speech

4. EU proposes data protection reform
• January 2012: European Commission proposes
comprehensive reform of its 1995 data protection rules.
• Reform includes several changes intended to strengthen
online privacy rights and enhance Europe’s digital economy.
• Most controversial provision is the “right to be forgotten” –
Focus of this report

5. EU perspective on personal data
protection
Viviane Reding, European
Commission, said on January
25:
Photo courtesy of AP
“The protection of personal data is a fundamental right for
all Europeans, but citizens do not always feel in full control of
their personal data. My proposals will build trust in online
services because people will be better informed about their
rights and in more control of their information.”

6. Perspective of EU citizens
• More than half of Europeans feel that they
must disclose personal information if they
want to obtain products or services.
• Yet, only 26 percent of social network users
and 18 percent of online shoppers feel in
complete control of their data, according to a
2011 survey.
Source: Citizens’ perceptions of data protection and privacy in Europe

7. Article 17: right to be forgotten and to
erasure
• Policy is laid out in Section 3, Article 17 of the
EU’s proposed data protection regulation.
• Right enables people to delete their data
(text, photos, videos) if there are no
“legitimate grounds” for retaining it.

8. Analysis: Scope & Applicability
– Scope of policy is too broad and could lead to
enforcement discrepancies among countries
– Policy wrongly places “burden of proof” on users
– Policy fails to address issue of how to request erasure
of cross-posted information with any clarity
– Responsibilities of data controllers (Facebook, Google,
YouTube) are not clearly articulated

9. Analysis: Impact on Free Speech
• Rosen (2012) said “right to be forgotten”
represents the “biggest threat to free speech in
the coming decade.”
• EDRi also concerned right could be misused as a
tool for censorship.
• Other scholars said the right could produce a
“chilling effect” caused by deletion in ambiguous
cases.

10. Impact on Free Speech, cont’d
• Clash between EU and U.S. conceptions of
free speech and privacy could result in a far
less open Internet
• There is the potential for erasure of important
information. As Ausloos (2012) stated,
“Culture is memory.”

11. The policy requires substantial revisions in order
to meet its goal of strengthening personal data
protection without causing undue erasure.

12. Suggested revisions
• Limit the scope of the policy so that it applies
only to data that users have consented to.
• Define the right to be forgotten in specific terms
by clearly articulating situations where erasure is
appropriate.
• Explain the materials or information (i.e. the
proof) required to request erasure.

13. Suggested revisions cont’d
• Address the issue of information cross-posted
on multiple platforms and whether it is up to
users to ensure erasure is carried out to the
fullest extent.
• State as explicitly as possible the
responsibilities of data controllers in terms of
fulfilling an erasure request.

14. Conclusion
• By making the suggested revisions and seeking the input of
data controllers, the policy stands a greater chance of
succeeding in the future.
• If the “right to be forgotten” is effectively implemented
across Europe, a new global standard will emerge for the
protection of personal data.
• The balance of power will shift in favor of individuals.
• It remains to be seen whether other countries, such as the
U.S., will consider a similar policy.