A right to be remembered
A notice placed in a Spanish newspaper 16 years ago, relating to an individual’s legal proceedings over social security debts, appeared many years later in Google’s search results. This led to the recent landmark decision by the European Court of Justice (ECJ) to uphold the Spanish data protection regulator’s initial ruling against Google – who were asked to remove the index and stop any future access to the digitised newspaper article by searching for the individual’s name.
Right to be forgotten
This “right to be forgotten” has been mentioned frequently since, a principle that an individual shall be able to remove traces of past events in their life from the Internet or other records. The “right to be forgotten” is a concept which has generated a great deal of legal, technical and moral wrangling, and is taken into account in practice but not (yet) enforced explicitly by law. As a matter of fact, the ECJ did not specifically find that there is a ‘right to be forgotten’ in the Google case, but applied existing provisions in the EU Data Protection Directive, and Article 8 of the European Convention on Human Rights, the right to respect for private and family life.
Implications to UK Law
In the UK Web Archive our aim is to collect and store information from the Internet and keep that for posterity. There is a question, therefore on how the ECJ decision implicates web archiving?
To answer this question, we would like to point to our existing notice and takedown policy which allows the withdrawal of public access to, or removal of deposited material under specific circumstances.
There is at present no formal and general “right to be forgotten” in UK law, on which a person may demand withdrawal of the lawfully archived copy of lawfully published material, on the sole basis that they do not wish it to be available any longer. However, the Data Protection Act 1998 is applied as the legal basis for withdrawing material containing sensitive personal data, which may cause substantial damage or distress to the data subject. Our policy is in line with the Information Commissioner's Office's response to the Google ruling, which recommend a focus on "evidence of damage and distress to individuals" when reviewing complaints.
Links only, not data
It is important to recognise that the context of the ECJ’s decision is Google’s activities in locating, indexing and making available links to websites containing information about an individual. It is not about the information itself and the court did not consider the blocking or taking down access to the newspaper article.
The purpose of Legal Deposit is to protect and ensure the “right to be remembered” by keeping snapshots of the UK internet as the nation’s digital heritage. Websites archived for Legal Deposit are only accessible within the Legal Deposit Libraries’ reading rooms and the content of the archive is not available for search engines. This significantly reduces the potential damage and impact to individuals and the libraries’ exposure to take-down requests.
Our conclusion is that the Google case does not significantly change our current notice and take-down policy for non-print Legal Deposit material. However, we will review our practice and procedures to reflect the judgement, especially with regard to indexing, cataloguing and resource discovery based on individuals’ names.
By Helen Hockx-Yu, Head of Web Archiving, The British Library
* I would like to thank my colleague Lynn Young, British Library’s Records Manager, whose various emails and internal papers provide much useful information for this blog post.