Page 132 - Privacy in a Cyber Age Policy and Practice

120 PRIVACY IN A CYBER AGE

for a much wider-ranging “informal social communication,” as sociologists
call gossip, applies not merely to criminals, sexual predators, and disgraced
physicians. It holds for people who trade on eBay, sell used books on Ama-
zon, or distribute loans from e-banks. These people are also eager to main-
tain their reputations—not just locally but globally. Stripping cyberspace of
measures to punish those who deceive and cheat will severely set back the
utility of the Internet for travel, trade, investment, and much more.
This need is served in part by user-generated feedback and ratings,
which inform others who may do business via the Internet—much like
traditional community gossip would. The ability of people to obscure their
past in pre-Internet days made it all too easy for charlatans, quacks, and
criminal offenders to hurt more people by simply switching locations. The
new, digitized transparency is one major means of facilitating deals between
people who do not know each other. With enough effort, its undesirable
side effects can be curbed, and people can still gain a second chance. It
may also be useful to provide people with greater control over their online
presence more broadly, although difficult to implement in a balanced way.
The European Union’s evolving privacy legislation is making a major
move in this direction. Announced in 2012 and taking effect in 2014,
the EU’s data protection rules explicitly incorporate the “right to be for-
gotten.” According to Jeffrey Rosen, this legislation has its intellectual
roots “in French law, which recognizes le droit à l’oubli—or the ‘right of
oblivion’—allowing a convicted criminal who has served his time and been
rehabilitated to object to the publication of the facts of his conviction and
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incarceration.” At the time of its announcement, commentators disputed
the implication of this ruling. Where the EU Justice Commissioner Viviane
Reding asserted that this right to be forgotten was merely a limited right
for people “to withdraw their consent to the processing of the personal data
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they have given out themselves,” Jeffrey Rosen warned that it represented
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“the biggest threat to free speech on the Internet in the coming decade.”
On the other hand, John Hendel asserted that the right “shouldn’t worry
proponents of free speech,” but only those “companies whose profits rely
on mined, invasive data abuses.” 20
The practical implications of this law began to emerge in 2014, when the
European Court of Justice, the highest appeals court in matters of EU-wide
law, ruled on a case in which a Spanish citizen demanded that a Spanish
newspaper remove an outdated story relating to his previous indebtedness,
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as well as that Google remove the relevant search results. The EU court
upheld the Spanish Data Protection Agency’s decision, which allowed the
newspaper to leave the story posted, but forced Google to take down links
to the story from the results of searches that related to the citizen’s name
(as opposed to all searches). More broadly, the EU court reaffirmed the