Right to be forgotten

from Wikipedia, the free encyclopedia

The right to be forgotten (English: Right to be forgotten ) to ensure that digital information with a personal reference is not permanently available. The right to be forgotten is sometimes shortened and incorrectly referred to as the “right to be forgotten”. Because the law relates to electronically stored data, one also speaks of the “digital eraser”.

The concept of the right to be forgotten goes back to the legal and political scientist Viktor Mayer-Schönberger . He suggests that electronically stored information be given an expiration date or an expiry date. After this date, the information should be automatically deleted by a program or the operating system of the computer.

Legal regulations

Currently, the right to be forgotten is not specifically regulated by law. The data protection laws - for example in Germany - only contain provisions under which conditions personal data must be deleted.

European Union

In 2011, Mayer-Schönberger's approach was taken up by the European Commission , which included the right to be forgotten and erasure in its plans for an EU data protection reform. The General Data Protection Regulation proposed by the Commission should contain a corresponding regulation. The explanatory memorandum for the draft regulation states:

“Everyone should […] have a 'right to be forgotten' if their data have been stored in violation of the regulation. In particular, data subjects should have the right to have their personal data deleted and not further processed if the purposes for which the data was collected are no longer necessary, if the data subjects withdraw their consent to the processing or object to the processing of the have submitted personal data concerning them or if their personal data have been processed for other reasons in violation of the regulation. This right is particularly important in cases in which the data subject gave their consent when they were children and insofar as the dangers associated with the processing could not be fully anticipated and the data - especially those stored on the Internet - would like to be deleted later. [...] In order to enforce the 'right to be forgotten' on the Internet more effectively, the right to erasure should go so far that a controller who has made the personal data public has the obligation to provide third parties with this data process, to communicate that a data subject requests the deletion of links to this data or of copies or reproductions of this data. [...] "

- European Commission : proposal for a general data protection regulation, recitals 53 and 54.

The draft of the European Commission does not go so far into Viktor Mayer-Schönberger's approach of giving each file a preventive lifespan. Rather, what is meant is a strengthening of the data protection principles of informational self-determination and the purpose limitation of data processing .

The draft also includes a third party information obligation if a data subject requests the deletion of this data:

"If the person responsible for the processing mentioned in paragraph 1 [Reasons for Applicability] has made the personal data public, he shall take all reasonable steps, including technical steps, with regard to the data for which he is responsible for publication, in order to inform third parties who have Process data, to inform them that a data subject requests them to delete all cross-references to this personal data or copies or replications of this data. If the data controller has allowed a third party to publish personal data, the responsibility for this rests with the data controller. "

- European Commission : Proposal for a General Data Protection Regulation, Article 17, Paragraph 2

The right was removed from the draft for the vote on October 21, 2013 and limited to the right to delete.

In the General Data Protection Regulation (Regulation (EU) 2016/679 ), which came into force on May 24, 2016 and will apply directly in all EU member states from May 25, 2018 , the right to erasure is regulated in Art. The heading of this article contains the addition of “right to be forgotten” in brackets. However, the regulation primarily contains erasure rights and obligations. Only in Article 17 (2) is the idea of ​​the right to be forgotten, to prevent or reverse the (further) dissemination of personal data (especially on the Internet), at least initially pursued. The regulation has the following wording:

"If the person responsible has made the personal data public and is obliged to delete it in accordance with paragraph 1, he shall take appropriate measures, including technical measures, taking into account the available technology and the implementation costs, in order to ensure that those responsible for the data processing who process the personal data, to inform that a data subject has requested the deletion of all links to this personal data or of copies or replications of this personal data. "

Germany

In Germany, there was no explicit right to be forgotten until the General Data Protection Regulation came into force. In the meantime, however, Section 35 of the Federal Data Protection Act also refers to the GDPR. In addition, the data protection principles of data economy and data avoidance and informational self-determination are based on the same approaches and are also regulated by law in the Federal Data Protection Act. There are legal regulations on the storage duration of criminal offenses and separation periods for information (files). However, these deadlines do not always ensure that the relevant information is automatically or actually deleted after a certain period of time.

Case studies

European Union

On May 13, 2014, the European Court of Justice (ECJ) decided a lawsuit against Google on the basis of Directive 95/46 / EC of the Commission . He ruled that, under certain conditions, people can request the removal of links with data related to them, for example to old press articles with outdated or relevant information, from search engine results lists. In the case of public figures, this only applies to a limited extent, where a balance must be struck between their personal rights and the public's right to access information. The court no longer classifies search engines only as carriers of content, but as data processors who are jointly responsible for the content that is disseminated. The press, on the other hand, is privileged and does not have to remove such content from its archive offer. ECJ Vice President Koen Lenaerts explained in an interview with the taz that the Court of Justice had not invented a “right to be forgotten”. He only made a balance of interests on the basis of the EU data protection directive. Since the judgment is only binding for the EU member states, the search results that are no longer visible on google.de, for example, can still be found when searching on the google.com website, depending on the language setting.

Germany

The internet phenomenon Techno Viking was filmed at a techno parade in July 2000 and uploaded to YouTube in 2006. It shows a scantily clad man dancing to techno music. In 2009 a legal dispute began between the dancer and cameraman Matthias Fritsch. On May 30, 2013, the Berlin district court ruled that the dancer has the right to refrain from distributing the video and the merchandising articles because he has not expressly consented to the publication. Although Fritsch complied, the video is still available today on various portals.

A man sentenced to life imprisonment in the 1982 Apollonia case for double murders and attempted murder sued Der Spiegel because his full name was mentioned in the news magazine and archived issues have been accessible online since 1999. The Hamburg Higher Regional Court ruled that naming him was stigmatizing and violated his personal rights . After the Federal Court of Justice overturned the judgment in 2012, the man lodged a constitutional complaint . The First Senate of the Federal Constitutional Court , chaired by Johannes Masing , led the proceedings on the right to be forgotten. At the end of 2019, the BVerfG issued a fundamental decision on this ("Right to be forgotten I"). In it, the court also examined European fundamental rights from the Charter of Fundamental Rights for the first time on the basis of a national constitutional complaint. Previously, these were only used indirectly for the interpretation.

criticism

In January 2012, the then federal chairman of the German Pirate Party, Sebastian Nerz , described the European Commission's plans for the right to be forgotten as naive. The internet economy is too creative to allow itself to be tamed.

Ilse Aigner , the former German Federal Minister for Food, Agriculture and Consumer Protection, welcomed the EU Commission's considerations in principle, but the right to be forgotten should not lead to freedom of expression and freedom of the press being restricted. Newsrooms should not be obliged to delete articles from the archives upon action by individuals.

Lila Tretikov , Executive Director of the Wikimedia Foundation , criticized the judgment in 2014 because the European Court of Justice was curtailing its responsibility to uphold one of the most important and universal human rights, the right to “seek and find information”. Because the “right to be forgotten” does not require any public explanation or justification and is not subject to any legal process, irrevocable “memory gaps” could arise that document unpleasant facts.

Jimmy Wales , chief founder of Wikipedia , described the "right to be forgotten" as "deeply immoral" after the Wikimedia Foundation received requests to remove content and as "silly".

technical realization

Technically, the right to be forgotten would be through software like X-pire! actionable. Due to the cumbersome and chargeable organizational procedure, this software is considered stillbirth. The basic principle of Digital Rights Management (DRM) is still under discussion.

It is difficult to prevent copies of personal data (e.g. through screenshots ) and their dissemination on the Internet - also because of the so-called Streisand effect .

As a result of the ruling by the European Court of Justice, Google has been publishing a form to request the deletion of URLs from search results since June 2014. Google does not hide the links from all language versions. At the bottom of the page, Google emphasizes: "Some results may have been removed due to provisions of European data protection law." Media such as Spiegel and The Guardian reported from July 2014 on the hiding of individual articles in the search results. Google set up an advisory board with external European experts to develop a deletion guide. The former Federal Minister of Justice Sabine Leutheusser-Schnarrenberger is involved . Results were only deleted on European domains. The request to hide the information worldwide was rejected by the ECJ in September 2019.

literature

  • Viktor Mayer-Schönberger: Delete. The virtue of forgetting in the digital age . Berlin University Press, Berlin 2010, ISBN 978-3-940432-90-2 .
  • Viktor Mayer-Schönberger: What makes us human - remarks on the right to be forgotten . In: Data protection news . No. 1 , 2012, p. 9-11 .
  • Norbert Nolte: On the right to be forgotten on the Internet. From the digital eraser and other instruments . In: Journal for Legal Policy . No. 8 , 2011, p. 236-240 .
  • Silke Jandt, Olga Kieselmann, Arno Wacker: Right to be forgotten on the Internet. In: Data protection and data security 4/2013, p. 235 ff.
  • Hannes Federrath, Karl-Peter Fuchs, Dominik Herrmann, Daniel Maier, Florian Scheuer, Kai Wagner: Limits of the "digital eraser". In: Data protection and data security 6/2011, pp. 403–407.
  • Gerrit Forst: The employees' "right to be forgotten" . In: Operations consultant . No. 38 , 2014, p. 2293-2298 .
  • Gerrit Hornung , Kai Hofmann: A “Right to be Forgotten”? Claim and reality of a new data protection law . In: Juristentung 2013, 163–170.
  • Dinah Huerkamp: Forgetting as danger and grace - the right to (be) forgotten and its significance for the protection of minors . In: JMS-Report 4/2013, p. 2 ff.
  • Martin Diesterhöft: The right to a new beginning in the media. The “inability to forget about the internet” as a challenge to the general right of personality . Duncker & Humblot, Berlin 2014, ISBN 978-3-428-14292-7 .
  • Oskar Josef Gstrein: The right to be forgotten as a human right - does human dignity have a future in the information age? Nomos, Baden-Baden 2016, ISBN 978-3-8487-2989-0 .
  • Jan Weismantel: The "right to be forgotten" on the Internet after the "Google judgment" of the ECJ - accompanying an open process. Duncker & Humblot, Berlin 2017, ISBN 978-3-428-15294-0 .

Web links

Footnotes

  1. ↑ Cai Rienäcker: More data protection on the Internet: EU calls for the "right to be forgotten" on the Internet. In: tagesschau.de . January 25, 2012, accessed February 25, 2013 .
  2. ↑ Werner Pluta: Interview: "Data need an expiration date". In: Golem.de . April 2, 2008, accessed February 25, 2013 .
  3. ↑ European Commission: Proposal for a General Data Protection Regulation. (PDF; 473 kB).
  4. ↑ Alexander Hammer, Heise Telepolis October 21, 2013
  5. ^ Judgment in Case C-131/12. (PDF) In: European Court of Justice . May 13, 2014, accessed May 19, 2014 .
  6. ^ "The right to privacy prevails" , taz.de, September 19, 2014, accessed on January 14, 2017.
  7. ↑ Deletion requests to Google: Search engine only wants to block in Europe . In: Spiegel Online , May 30, 2014. Retrieved July 3, 2014. 
  8. ↑ Technoviking Archive ( Memento from August 14, 2014 in the Internet Archive )
  9. ↑ Technoviking Archive ( Memento from October 3, 2013 in the Internet Archive )
  10. ↑ Judgment of the Berlin Regional Court of May 30, 2013, Az .: 27 O 632/12 online (PDF; 278 kB)
  11. ↑ Gerhard Mauz : "I panicked" . In: Der Spiegel 47/1982 of November 22, 1982, pp. 115–122 ( PDF , accessed on January 13, 2017).
  12. ↑ Decision of the BVerfG of November 6, 2019, Az. 1 BvR 16/13. In: BVerfG . November 6, 2019, accessed June 19, 2020 .
  13. ↑ How the BVerfG reorganizes the examination of fundamental rights. In: LTO . December 4, 2019, accessed January 22, 2020 .
  14. ↑ Criticism of EU Commissioner Reding: Pirates find the "right to be forgotten" "naive". In: Focus . January 25, 2012, accessed February 25, 2013 .
  15. ↑ Claudia Ehrenstein, Benedikt Fuest, Ileana Grabitz : New EU consumer protection law: Aigner warns of restrictions on the freedom of the press. In: The world . January 25, 2012, accessed February 25, 2013 .
  16. ↑ Lila Tretikov: European court decision punches holes in free knowledge. In: blog.wikimedia.org. August 6, 2014, accessed August 6, 2014 .
  17. ↑ Wikipedia founder: EU's Right to be Forgotten is 'deeply immoral' . In: The Daily Telegraph , July 25, 2014, accessed January 4, 2015.
  18. ↑ EU-Google Ruling: Wikipedia's Jimmy Wales Ridicules 'Right to Be Forgotten' , International Business Times of May 14, 2014, accessed on January 4, 2015 (English)
  19. ↑ "Digital eraser" has started . In: heise.de . Jan 24, 2011, accessed July 25, 2013.
  20. ↑ Request to remove search results according to European data protection law. In: support.google.com. Retrieved July 7, 2014 .
  21. ↑ Right to be forgotten: Google removes SPIEGEL articles from search results . In: Spiegel Online , July 4, 2014. Accessed July 7, 2014. 
  22. ↑ EU's right to be forgotten: Guardian articles have been hidden by Google . In: TheGuardian , July 2, 2014. Retrieved July 7, 2014. 
  23. ↑ Google adds Leutheusser-Schnarrenberger to the Lösch Advisory Board , Spiegel online, July 11, 2014, accessed on January 14, 2017.
  24. ↑ The operator of a search engine is not obliged to de-list all versions of his search engine , Court of Justice of the European Union, September 24, 2019, accessed on September 24, 2019.