While I find the ‘Right to be forgotten’
law/precedent interesting and even convivial, the fact remains that such a law
may have grave implications on our society. By society, I mean the global
village we find ourselves in today and the throng of imperfect, inadequate and
sometimes inhuman inhabitants (e.g. BH), we find within this space.
Undoubtedly, we all have
things and phases of lives we would like forgotten, but for the greater good of
society this might not always be appropriate and fair to all parties concerned
– particularly when the action in question impacts on others directly.
The question is this, ‘does
the right to keep an information
private/hidden/and away from public eye supersede the right (Freedom) of the
public to that information?’
The ‘Right to Forgotten’ Law
recently came under fire and into proper scrutiny on May 13, 2014 when search
engine (research) giant, Google (GOOG) lost a data privacy suit against it at
the European Court in Luxembourg.
The European Court of Justice in its ruling
confirmed that an EU law exists which allows citizens to claim a “right to be
forgotten” stating that Google is bound to obey this law and must enforce it.
The court’s ruling established
that armed with a “right to be forgotten,” an individual can make a request to
Google, asking it to remove information about them from its search guide. This
request could be pictures displaying youthful exuberance, moments of
indiscretion, offensive comments on a social media website, malicious
allegations, old publications of financial impropriety, links to old debts,
notifications of court orders, unfavourable court orders, company filings, etc.
This precedent laid down,
which currently applies across the EU, now forces Google and other online
publishers to handle all information received differently.
Holistically speaking, the law
imposes on Google, the duty/obligation to manage content on its servers and
links. Google is effectively responsible for content, even if it was simply
processing it on its servers and presenting links. If it receives a legitimate
request to delete information on those servers, it must do so, even if that
information is still published legally on the internet.
After the ruling, Google Inc.
(GOOG) has had consultations with data-protection regulators and just two days
ago, Friday May 30th, 2014 the company came up with an online tool to remove
personal information where the need arises. The new web form allows citizens in
28 European countries to request the Google search platform to remove results
for queries that include their names where those results are ‘inadequate,
irrelevant, no longer relevant, or excessive in relation to the purposes for
which they were processed.’
Interestingly, the arguments
for and against this law and the decision of the court, has been diverse and
far-reaching beyond the EU.
In the United States of our
America, where the scales are tilted in favour of Free Speech and Freedom of
Information, as against the right to privacy, observers and critics actually
consider the ruling a “Blow” against free speech.”
Nigeria on the other hand,
currently has no significant Data/information or Privacy protection law (An
Act). Whilst our Constitution (Constitution of the Federal Republic of Nigeria,
1999) provides for our Right to Privacy in Section 37, it is not far-reaching
enough to cater for Data/information protection abuse. Nonetheless, certain
precedents such as the case of Ariori v. Elemo (1983) 1 SC 13, which attempted
to take care of this, by establishing public interest over and above private
interests.
Data protection involves
strategic measures to manage and safeguard the unauthorised access or use of
data, and efforts at enacting an appropriate data protection law in Nigeria –
one that is far reaching, has met with great hurdles after seven attempts.
The first attempt was in 2005
– a bill for an Act to provide for Computer Security
and Critical Information Infrastructure Protection Bill was proposed; the next
was the Cyber Security and Data Protection Agency Bill 2008; followed by the
Electronic Fraud Prohibition Bill 2008; the Nigeria Computer Security and
Protection Agency Bill 2009; Computer Misuse Bill 2009 and the Economic and
Financial Crimes Commission Act (Amendment) Bill 2010, and again the Cyber Security and Information
Protection Agency Bill 2012, which has gone through its 2nd reading.
Speaking on the issue,
Anti-Counterfeit expert and Partner in charge of Brand Protection, Media and
Entertainment Practice at commercial law firm Jackson Etti & Edu, Obafemi
Agaba, notes that a privacy law or precedent such as the “Right to be Forgotten”
ruling handed down against Google, should ordinarily take into consideration
public safety and interest.
In his view, “whilst we have
no set privacy laws in Nigeria, an individual can have recourse under the
fundamental rights provision in the 1999 constitution as well as in common law. I also believe that
a Data Protection/Privacy law in any part of the world should take into
consideration the good of the public and their right to know.”
He continues, “That part of an
individual’s life which directly affects or impacts the public should be left
open and accessible to the public. As a legal practitioner and a privacy
expert, I always advice my clients about the position of the law where the
individual’s interests conflicts with that of the law,” he concluded.
However, Mena Ajakpovi an
expert in Commercial litigation, whose clients range from public officers to
artists and star entertainers, believes that there must be an “established’
overriding statutory public interest” before such data can be considered ‘NOT
PRIVATE’ and made accessible to the public.
Citing the case of Ariori v.
Elemo, he explains, “In the face of that responsibility, if pulling down or
removing that information or data by an individual pre-disposes him/her to
commit that an offence or infringing on the right of another.”
The critical issue however, is
striking that balance between allowing individuals control of their online
presentation and ensuring that the system is not abused to remove stories in
the public interest.
While Civil rights and Public
Interest advocates continue to express concerns as to who has the role of
deciding what is in the public’s interest, another Nigerian Legal Practitioner,
Ayodele Oni does not think it is Google’s role or any other Search engine to
make public an individual’s private information that he/she wants hidden or
kept private from public eye.
Hear him, “It is trite
(commonplace) that a person is not entitled to a reputation he or she does not
have. That said, to the extent that there are other records publicly available,
I believe that persons can request a firm like Google to delete their offensive
records. Where anyone needs to conduct a criminal check, then they can visit
bodies statutorily empowered or obliged to keep same (e.g. the Police or the
EFCC) and not firms such as Google etc.
“We need to work on our data
storage and keeping system in Nigeria like the credit bureau newly established
in Nigeria. So for credits now, there is now typically a credit record check.
We can adopt that for other issues such as criminal, bankruptcy and the likes,”
he said
Situations where data
protection might be overlooked are found in legislations such as the European
Convention on Human rights, which allows access to a government agency or
public authority in a democratic society – but must only do so where it is
absolutely necessary and is in the interest of national security, public
safety, the economic well-being of the country, the prevention of crime, or for
the protection of the rights and freedoms of others.
In the weeks that have passed
after the ruling, the questions persist. Questions that bother on, “What
happens when a budding politician with a criminal conviction or unsavory public
comments that are mentioned in an online post wants it removed? Would it be
right for content censorship to clear the path to them becoming a public
figure? What happens to the fiancée of a convicted fraudster who may be
deprived of the right to see information relating to their past because he/she
has asked for it to be removed from Google searches or any other search
platform?
As they continue to lament the
implication of the ruling, FOI proponents and promoters believe that it has set
an unusual and unwelcome precedent, whilst describing it as radical.
Google has confirmed that
since the ruling was announced a few weeks ago, they have received thousands of
requests, including a scandal-hit politician, a paedophile convicted of
possessing images of child abuse, and a doctor who wanted negative reviews of his
practice removed.
One thing is certain though,
‘Reputation Managers’, ‘Publicists’ or whatever they are called these days, are
having a field day now.
But the question remains…..TO
KNOW OR NOT TO KNOW. What Prevails?
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