In support of incorporating 'the right to be forgotten' into Australian law

By Alexander Lalor

In a world where internet-connected devices are ubiquitous, embarrassing moments and misdemeanours may be saved, broadcast and accessed in perpetuity. The lingering, adverse consequences of a person’s digital footprint have generated calls for individuals to have greater control over third-person access to information about them and even led to the formalisation of a ‘right to be forgotten’ (or ‘right to erasure’) in several jurisdictions.

The ‘right to be forgotten’ is, broadly speaking, the right for individuals to have private information about them removed from public directories in certain circumstances. It exists to prevent inordinate interference with individuals’ privacy and reputations as a result of the ongoing accessibility of information about them which no longer serves sufficient public interest.

Despite codification (see Argentina [s 43] and the European Union) and judicial recognition (European Court of Justice), the right has not yet been formally accepted in Australia. Although there are some reasonable reservations to operation, the right’s ability to safeguard individuals’ privacy and dignity in the digital era justifies its adoption in Australia.

What is the ‘right to be forgotten’?

The origins of the ‘right to be forgotten’ can be traced back well before the Internet age, most notably with individuals seeking to escape the legacy of criminal offences and re-integrate into society after having ‘done their time’. However, the emergence of the internet, offering an instantly and universally accessible source of media relating to individuals regardless of veracity, relevance or adequacy, has strengthened calls for its formal recognition in law.

After various instances of the ongoing circulation of false, outdated and unnecessarily public media (including the distribution of revenge porn and stories of petty crime) causing demonstrable harm to individuals, the feebleness of traditional remedies such as defamation in providing redress amidst jurisdictional and practical enforcement concerns in the 21st Century has been exposed. This legal gap, coupled with a broader desire for individual control over personal data has seen (amongst other jurisdictions), the right being reflected in Article 17 of both the European Union and United Kingdom’s General Data Protection Regulations.

Vitally, the ‘right to be forgotten’ is qualified in these jurisdictions. Its operation needs to balance the competing interests of individuals’ right to privacy, publishers’ rights of expression, and the public interest in having access to information.

Generally, laws related to the right compel publishers or directories to erase information about an individual at that individual’s request, except where keeping information in the public domain is necessary to exercise the right of freedom of expression; comply with a legal obligation; achieve a public interest; or to establish, exercise or defend a legal claim.

One of the consequences of the operation of these laws is the emergence of extrajudicial remedies to individual complaints about personal data. Even in jurisdictions where there is no formal legal right to be forgotten, major public directories like Google and Twitter often offer mechanisms for individuals to request data be deleted or removed in the interests of public relations and user experience. Critically, where there is no force of law, decisions to delete information remain at the discretion of these companies.

Reservations to the right

In other arenas of life, transparency is seen as not only highly advantageous in facilitating an informed assessment of trustworthiness, creditworthiness and general character, but also a necessary pre-requisite for ethical business such as under the Modern Slavery Act and Anti-Money Laundering and Counter-Terrorism Act.

It is arguable that restrictions to publishing information is detrimental to public safety and contrary to public interest. This tension is perhaps best demonstrated by concerns raised over those formerly involved in Latin American dictatorships exploiting the right to escape the consequences of their actions and further prevent their nations at large from recovering from the harm of these regimes.

Additionally, restrictions on the publishing of content about individuals could have serious adverse consequences on journalism and the media industry at large, potentially coming in conflict with the recognised right to expression. This argument is seen as particularly persuasive in the United States where many commentators view the operation of the First Amendment as a significant impasse to introducing a legal ‘right to be forgotten’.

It is also exceedingly difficult to ever fully remove information once it has been released on the internet. Even if access is banned in one jurisdiction, there can be no truly universal limits on the publishing and maintenance of data without the unlikely establishment of an international concord.  There are legitimate reasons to question whether any formal right can truly achieve its desired ends.

Plainly, if these laws infringe upon rights to safety and expression yet fail to truly protect the privacy they purport to safeguard, there would appear to be scope to query the justification of their operation at all.

The ‘right to be forgotten’ in Australia

Presently, there is no recognised ‘right to be forgotten’ in Australia. Instead, Australian citizens are most significantly protected against the misuse of information about them by Australian Privacy Principles under the Commonwealth Privacy Act 1988 and traditional remedies such as the tort of defamation.

While defamation is potentially effective in providing injunctive relief in removing slanderous content, it is noticeably impotent in addressing privacy concerns about injurious albeit true public information about an individual. The efficacy of the remedy is also limited by practical concerns about enforcement, relying on the traditional targeting of a defamatory party which may serve as an obstacle when content is posted by an unidentifiable or extra-jurisdictional individual, while the costs of bringing an action against a party necessarily serve as a further barrier to redress.

Australian Privacy Principles offer greater privacy protections for individuals, most notably by imposing obligations on entities to ensure personal information is accurate (Principle 10); to take reasonable steps to prevent misuse or unauthorised modification of personal information (Principle 11); and, to some extent, correct inaccurate information about an individual at the request of the individual (Principle 13). However, they still remain less comprehensive than the aforementioned formalised conceptions of the ‘right to be forgotten’ operating in other jurisdictions.

Fundamentally, Australians have less control over their privacy in comparison to their European peers. In effect, they are broadly reliant on the good faith monitoring, community guidelines and reporting systems of billion-dollar companies that are driven by profit rather than rights protection.

Although there are admittedly legitimate concerns about misuse of a formal ‘right to be forgotten’, if it is truly a right that is recognised in other jurisdictions, surely Australians deserve similar protections over their own privacy. Individual rights should necessarily be apolitical and, particularly when relating to the same transnational internet, it seems inconceivable that an Australian should have less de jure protections over her privacy than her Spanish counterpart.

The ‘right to be forgotten’ may not quite be an inherent human right and would more correctly be characterised as a man-made solution to issues of privacy, dignity and rehabilitation posed in the internet age. Nevertheless, as a safeguard of individual liberty deemed acceptable and necessary in other relatively liberal nations, it would seem prudent to formally endow it with force of law in Australia.

Alexander Lalor is in his fifth year of a Bachelor of Laws/Bachelor of Commerce (International Business) and an intern at the Australian Journal of Human Rights for Term 1 of 2021.