Should NZ have a right to be forgotten?

July 3rd, 2014 at 11:00 am by David Farrar

John Edwards blogs:

The biggest thing in the privacy world just now seems to have exploded into the collective consciousness out of nowhere. For those of you with TLDR (Too Long Didn’t Read) syndrome, here’s the spoiler. The issue is not as clear cut as you might think. I’d like to hear a range of views about how we should approach this in New Zealand.

Since May 13, when the European Court of Justice ruled that Google in Spain should break links to an old newspaper story about the plaintiff, there has been much criticism, astonishment, suspicion, relief and applause, depending on which side of the fence (or the Atlantic) the commentator comes from.

I’m one of those fairly unimpressed with it.

Could someone in New Zealand assert a right to have links removed from a Google search on their name? Our law differs in some key respects from European law. For example, we don’t have the concept of “data controller” or “data processor”, and there are a number of other differences.

The first hurdle would be territoriality. Google could be expected to argue that their search engine and the algorithms that compile and order results are not within New Zealand’s jurisdiction. The ECJ decision might offer some assistance to a litigant on that point, as might this June 13 decision of the Canadian Supreme Court which is a more influential source of jurisprudence to our courts.

Google has a .co.nz domain name registered in New Zealand. If you search for a mechanic or painter in your town, the ads that lead the search results will tell you pretty clearly that Google has a place of business here, and those points might provide the beginnings of an argument that Google should be subject to a range of domestic laws – from the Fair Trading Act, to the Copyright Act, to the upcoming Harmful Digital Communications Act. Should privacy be any different?

Google could of course close down its local office, and run its NZ operations from say Australia.

A number of other arguments would then ensue as to the liability (if any) that Google should have for content hosted on sites to which it is only providing a link to. What is the extent of Google’s obligation under the multi-qualified information privacy principle 8 in our Privacy Act?

An agency that holds personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date, complete, relevant, and not misleading.

What is the onus if a New Zealand person asserts a right of correction (a term which is defined as including deletion) under information privacy principle 7?

My views is that people who want data about them on the Internet corrected, should go to the actual publisher of the data, and not hold the search engine liable for the data published by someone else.

Does the “purpose” element of the non-retention principle (principle 9) absolve search engines of the obligation to proactively purge old content? Should I issue a code of practice which spells out the respective rights of search engines and individuals?

I’m going to leave these questions until I am presented with an actual case to apply them to. There are many other authorities around the world grappling with the same difficulties.

I want my search engines to locate all content that is on the Internet, that the published has been asked to be indexed.

It may be that a case will come before me to determine before the issue comes to the Court or to Parliament. Someone might argue that Google should break a link to personal information that has been published online from a data breach, or that it is in breach of a Court suppression order. If I do have to determine such a case, in addition to weighing the various rights of privacy against the rights in the NZBORA, I will need to take into account the matters specified in s.14 of the Privacy Act. That means that, among other things, I have to have due regard to “the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information and the recognition of the right of government and business to achieve their objectives in an efficient way”.

Where do you think the balance should lie?

This is an issue that won’t go away.

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17 Responses to “Should NZ have a right to be forgotten?”

  1. berend (1,709 comments) says:

    This just in from the Guardian:

    When you Google someone from within the EU, you no longer see what the search giant thinks is the most important and relevant information about an individual. You see the most important information the target of your search is not trying to hide.

    And they go on to demonstrate six articles from the Guardian which google.co.uk will not show, but google.com will

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  2. gump (1,649 comments) says:

    As far as I’m aware, the only place on the Internet that my real name appears is the Companies Register (where my Directorships are a matter of public record). I refuse to use social media, don’t post to mailing lists, and don’t use my real name to post on blogs and forums.

    I don’t need legislation to enforce my right to be forgotten. My anonymity preserves that right.

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  3. igm (1,413 comments) says:

    gump: Likewise, I am on the Companies Register, and that is about it. Even have unlisted telephone number, and don’t go near social media. Don’t need some public service bludger telling me how to protect my anonymity, in fact, I think the Privacy Commission is just another socialist Geoffrey Palmer waste of time and money.

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  4. unaha-closp (1,165 comments) says:

    I’d suggest increasing the Privacy Commissioner’s budget by a factor of 1000x so he can go about regulating the worldwide web.

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  5. Fentex (974 comments) says:

    My views is that people who want data about them on the Internet corrected, should go to the actual publisher of the data, and not hold the search engine liable for the data published by someone else.

    I concur; it’s preposterous to hold Google responsible for the sources they locate – Google is an index, not a publisher (when it’s operating as a search engine, not obviously with regard to YouTube or all it’s other properties).

    This idea that Google is the source of the information is related to many other bad ideas one sees bandied about blaming Google for what is online. I often read of people complaining about Google in the context of worrying about piracy and trying to hold Google responsible for incidences of unauthorised copying.

    with regards to it’s search engine Google is a indexer, not a publisher, of information and as such serves as a reference for research. If it reveals that something is published that there is an argument should not be (a different argument altogether – whether there’s a good reason for censorship at any time) the issue is with what is published, not that Google helps locate it.

    I suppose someone might equate the matter to suppression orders from courts, let’s say about the name of a child someone is accused of harming in the interests of protecting the child from gossip, rumour, possible bullying and the identities of the accused (possibly innocent, possibly inferable from knowing the child’s identity) – that some people and court records might identify individuals the rights and safety of those involved may be protected by restricting it’s dissemination.

    If one finds that sort of reasoning acceptable then someone finding such information (or it’s like that similar reasoning accepts should be suppressed) via Google may be an argument for demanding removal of the source, and duplicates of it.

    But in practice removing every duplicate and cache from around the world is impossible and efforts to make it possible a threat to the integrity of the Internet. The Internet destroys geographical independence from and authority over information.

    We can no more hope to stop people elsewhere from presenting information we don’t like than Saudi Arabia has of us showing women driving and sitting as judges on our highest courts.

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  6. Nostalgia-NZ (5,206 comments) says:

    The Fair Trading Act is mentioned above, it now applies to the TM auction process (in a limited way which also happens to ‘protect’, wrongly in my opinion, the onus on TM as a literal auctioneer), they have also tightened their ‘privacy watch.’ There are plenty of decisions worldwide that the internet is not a borderless territory and many of the arguments the providers have used to limit their liability under the Law no longer exist as it is realised that internet and print media are virtually the same.

    I expect that ‘blogs’ might soon be argued to be agencies under the Privacy Act not only because of Karam v Parker and Purkiss but because of decisions in another ongoing case brought by the Human Rights Commission.

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  7. Fentex (974 comments) says:

    I think I sort of lost my track in my last comment where I meant to reason that;

    While one might think a court suppressing information in the interests of safety and justice makes sense it’s quite different from wanting to remove what has been public information for some time.

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  8. kowtow (8,475 comments) says:

    Make no mistake,taking a lead from European courts / human rights is pure “progressive’ activism and a very bad idea.

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  9. PaulL (5,981 comments) says:

    I’m 100% with you here DPF.

    Firstly, I’m not clear that there is a “right to be forgotten” in any meaningful sense. So long as my memory hasn’t gone to pieces, then I’m going to remember whatever I want, and nobody has the right to force me to forget stuff. So describing this as a right to be forgotten is really misdescribing it.

    What it is is a right for someone to cease publishing something about someone because it’s no longer convenient for that person to have people know it. To some extent I’d be OK with a right to go to the original publisher and ask them to correct things that are no longer correct – i.e. that have been overtaken by time. So, for example, if there’s an allegation that you committed some crime, you should perhaps have a right to ask someone who is still publishing that (so they still have the article on the web) to add a correction or addendum that notes that you were found not guilty. But I don’t think that you have a right to ask them to take it down (unless it’s untrue or defamatory – existing rights you have), because it does form a history of what happened. By the same logic you can’t ask a library to get out a pair of scissors and excise articles you no longer like from their newspaper archives.

    In the context of a search engine, I completely agree that the responsibility should not be Google’s. Sure, it’s convenient to have a central place to go to, but Google just index stuff that’s already there, they aren’t the publisher. It’s the publisher you should go to.

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  10. Rex Widerstrom (5,354 comments) says:

    But this is coming about because the MSM (and I don’t just mean in NZ, and I include online-only publications which rank highly because Google sees them.as credible) aren’t doing their traditional jobs as “journals of record”.

    If I went to the media today and swore blind that I’d been at a dog fight organised by DPF then tomorrow morning there’d be a flurry of “Prominent blogger accused of dog fighting” stories, naming him and detailing everything else he’s ever done. Google would see these as information-rich and popular – they’d be mentioned in many a blog post, for a start.

    Then, months later, perhaps after the police had sniffed round, extending the reportage over months, when it was found the whole thing was some crazy fantasy I’d dreamed up, poor DPF would be lucky to warrant a couple of perfunctory paragraphs mentioning his innocence. Some media wouldn’t even bother – “good” news not being news at all.

    And they’d leave up all the old accusatory articles, excusing this as their being “an accurate report of events at the time”. So when, even years from now, someone Googled DPF’s name, up would come these “credible”, information-rich, but outdated and inaccurate headlines: “Blogger allegedly in dog fighting ring” etc.

    A few of those in the first couple of pages of results and his chances of getting hired, married or even invited to dinner are torpedoed.

    There needs to be some mechanism to deal with this sort of thing. Crippling Google isn’t it, but if we’re not going to be blase about people having their reputation ruined for life by one accusation then the discussion suggested by the Privacy Commissioner does need to happen.

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  11. Nigel Kearney (1,013 comments) says:

    The notion of a conflict between privacy and free speech is largely an illusion.

    True privacy rights only restrict methods of obtaining information such as tapping your phone, and possibly information obtained as a consequence of such a method, or through breach of contract.

    There is no such thing as a general right to control what others say about you or what information they hold about you. Some people want to do this, but the Privacy Commissioner should not indulge them.

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  12. davidp (3,581 comments) says:

    Commentary from TechDirt… https://www.techdirt.com/articles/20140702/12094027764/google-alerts-press-about-right-to-be-forgotten-removals-putting-those-stories-back-news.shtml

    Summary: It’s creating a bit of a Streisand Effect.

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  13. m@tt (629 comments) says:

    Rex nails it.
    Gump and igm from above. You are both rightly proud of your ability to keep your real names off the online radar as much as possible. But you are only talking about information that you control.

    If somebody else posts factual information about you online, using legal means, or in a jurisdiction that you can not exert control over, how would you get rid of it if you didn’t want it to be online?

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  14. godruelf (55 comments) says:

    I bet “The right to be forgotten” will have the full support of the Maori King Movement

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  15. laworder (292 comments) says:

    Oh my God NO! NO! NO!

    Glad as I am that DPF is opposed, I am far more than just “fairly unimpressed with it” – I am absolutely horrified by this development. God forbid that such a totalitarian piece of legislation should come to exist here, and it shows how far Europe has slid from freedom that they can countenance such legislation. Nobody has the right to have their actions forgotten or concealed, especially when they have impacted other people’s lives.

    When we lose the right to publish facts and the truth and they must instead be shoved into some memory hole we have arrived at Orwell’s dystopian nightmare. There is little to distinguish the “right to be forgotten” from the Ministry of Truth http://en.wikipedia.org/wiki/Ministry_of_Truth

    Regards
    Peter J

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  16. laworder (292 comments) says:

    Nigel Kearney wrote

    There is no such thing as a general right to control what others say about you or what information they hold about you. Some people want to do this, but the Privacy Commissioner should not indulge them

    Hear hear – as long as what is published is true, and not specificallly a threat to a persons wellbeing (i.e. residential address, credit card number) then there should not be a restriction on its publication. The only right that should exist is the right to curtail untruths or correct information.

    And its interesting that the Streisand effect has come up. That is hopeful, long may it last

    Regards
    Peter J

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  17. Nostalgia-NZ (5,206 comments) says:

    ‘Google is an index, not a publisher’

    That’s a stretch.

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