First steps towards the inception of a “right to be forgotten”

Last 25th of January, the European Commission released that it will overhaul the former directive from 1995 on personal data (Directive 95/46/CE). In its press release, the concept of “right to be forgotten” popped-up naturally. Today, the protection of personal data is protected by the article 8 of the Charter of Fundamental rights[1].

A recent ruling issued by the Court of First Instance of Paris on the 15th of February[2] offers the opportunity to grasp the ins and outs of the concept of “right to be forgotten” within the digital arena. In this particular case, a legal secretary who has formerly a pornographic career, wished to withdraw the remnants of her past and asked for the cut of the URL links of pornographic videos available on the Internet where she made some appearance. The young lady run afoul of videos producers and filmmakers which remained apathetic. The Court acknowledged that the association of a family name with pornographic videos was detrimental to her private life. She obtained the cancellation of the litigious URL by Google.

This case law is echoing a former case law[3] where a professor made her voice heard in order to obtain the withdrawal of links redirecting towards pornographic websites. Given the new career she embraced the videos were harmful to her private life. Notwithstanding one has to put this case law into perspective. When such lawsuits are brought before the Courts, the Internet link come back to the stage and their ranking is likely to come back by the back door. The side effect of these lawsuits is to put it in a nutshell, that the decisions will be public and that instead of burying their past these victims are fueling the fire.

There is no denying that the multiplication tenfold of social networks and of cloud-computing widens the possibility of infringements. It is thus highly difficult to erase his or her digital print. These devices are gateways towards personal data infringements. Ineluctably, victims have to face juridical as well as technical hurdles. The decision to launch a lawsuit in order to protect his or her personal data is time-consuming. It will be tricky to find the person who actually infringed the rights. Needless to say that the actions which are brought up pertaining to the protection of personal data are scarce.

Nonetheless, it is of utmost importance to shelter oneself against the boomerang effect. The term of boomerang effect was coined by sociologists to characterize the situation where an individual can be harmful for himself while publishing personal date online. In posting contents online, internet users can derive some benefits in terms of reputation at the first place but later on, the displaying of such content can cause prejudice to the one who posted it. In order to frame the negative consequences of an information haemorrhage it is advisable to forecast ex ante regulation methods in order to suppress litigious content afterwards.

[1] Article 8

Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

[2]Court of First Instance Paris, February 15, 2012, Diana Z. / Google.

[3]Court of First Instance of Montpellier , Octobre 28,  2010, Mme C. /Google France et Inc.