25 February 2016

IFLA Statement on the Right to be Forgotten

Introduction

The "right to be forgotten" refers to an individual’s ability to request that a search engine (or other data provider) remove links to information about himself or herself from search results. This has also been referred to as the "right to delist," the "right to obscurity," the "right to erasure" or the "right to oblivion." In the media, the terms may be used interchangeably or be differentiated based on legal scope. In this document, the "right to be forgotten" (RTBF) is used as a general term for these concepts and their application.

The purpose of RTBF court rulings and legislation is to allow individuals to make information about themselves that is already on the Internet much more difficult to discover. Under most current applications of RTBF, information is not removed or destroyed at its source; rather, a search engine or web page owner prevents links from appearing in the search results list that is produced following a name search. The originally published information normally remains available and could potentially be located by using a different search engine (or a different national instance of the same search engine) or by using search terms other than the specific name to which an RTBF decision has been applied. That said, in some applications of RTBF, the underlying published information may, in fact, be removed.

Issues for libraries

The Integrity of and Access to the Historical Record

Libraries and librarianship preserve and provide access to information. The International Federation of Library Associations and Institutions (IFLA) sees information on the public Internet as published information that may have value for the public or for professional researchers and so should, in general, not be intentionally hidden, removed or destroyed. IFLA has called for the preservation of personally identifiable information in historical records. While the intent of RTBF is not generally to destroy information or to entirely remove it from availability through the Internet, it makes published information much more difficult to find. In practice, this can, in some cases, have the same effect as removing information.

The IFLA Code of Ethics for Librarians and other Information Workers (Full Version) states that:

"The role of information institutions and professionals, including libraries and librarians, in modern society is to support the optimisation of the recording and representation of information and to provide access to it. Information service in the interest of social, cultural and economic well-being is at the heart of librarianship and therefore librarians have social responsibility." (Preamble)

Librarians and other information workers organize and present content so that a user can find the information that he or she needs. RTBF, as some jurisdictions are implementing it, has the potential to compromise name-based Internet research on public figures in such fields as business and government, where there is a clear public interest, and to render genealogical and historical research more difficult.

Freedom of Access to Information and Freedom of Expression

IFLA affirms the right "to seek, receive and impart information and ideas through any media and regardless of frontiers," as expressed in the United Nations’ Universal Declaration of Human Rights (Article 19).  The ideal of freedom of access to information cannot be honoured where information is removed from availability or is destroyed.  Internet content disappears when owners update or remove content for their own purposes; however, this should be distinguished from an intentional or mandated manipulation of Internet search results. When links to information are removed, for many, this results in a loss of access to information.

Intentionally reducing access to information through RTBF may also frustrate the freedom of expression of the author or publisher of the information no longer found, where the author had the right to publish that information. 

Privacy of the Individual

IFLA accepts the necessity of protecting the privacy of living persons, the confidentiality of business and the security of government information insofar as these goals do not conflict with a higher public good, as stated in the IFLA Statement on Access to Personally Identifiable Information in Historical Records. Libraries defend the privacy of their users and maintain confidentiality about the resources and services that individuals use.  As well, IFLA does not support the permanent closure or destruction of records containing personally identifiable information, even in the name of personal privacy, commercial confidentiality or national security.

Libraries, as upholders of the public good, are sensitive to concerns around personal privacy in the context of the Internet. The IFLA Statement on Privacy in the Library Environment considers the need for privacy for those seeking information from or communicating through the Internet. While generally promoting access to published information, IFLA recognizes that some information on the Internet can be unfairly damaging to an individual’s reputation or security where it is untrue, where it is available illegitimately or illegally, where it is too personally sensitive or where it is prejudicially no longer relevant, among other possibilities.  IFLA further notes the relevance of the Universal Declaration of Human Rights to such situations, which states that:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

In some countries, RTBF is a means for individuals to address such situations. The degree to which libraries and librarians will find a particular application of RTBF to be acceptable, in the context of the more general library concern for access to information, will depend upon the particular circumstances of the application. For example, the removal of links to references to a minor juvenile crime or to sexually explicit photographs of a “private citizen” would seem more acceptable than would the removal of links to references to a business failure; an injudicious statement by a public figure, such as a politician or a corporate CEO; or to public records that have not been sealed by court order or judicial practice. The Court of Justice of the European Union (CJEU) itself suggested such limits to RTBF in its landmark 2014 decision, balancing it against the freedom of access to information:

"As the data subject may...request that the information in question no longer be made available ...those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information... However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question." (paragraph 97); the full paragraph references Articles 7 and 8 of the Charter of Fundamental Rights of the European Union

In some countries, RTBF decisions are made by search engines based on criteria provided by legislation or court judgments, while other countries require a judicial order to remove links. When search engines make the decisions, their full consideration of the issues of privacy versus the public interest is not transparent.

Advice to Library Professionals

IFLA urges its members to participate in policy discussion about RTBF, while both supporting the right to privacy for individual citizens and assisting individuals in their searches for information. To this effect, library professionals should:

  • Raise awareness among policy makers to ensure that the right to be forgotten does not apply where retaining links in search engine results is necessary for historical, statistical and research purposes; for reasons of public interest; or for the exercise of the right of freedom of expression.
  • Fully support access to information for researchers who require personally identifiable information for biographical, genealogical and other research and publications, and advocate to policy makers when policy related to the right to be forgotten may result in the destruction or loss of access to information for these purposes.
  • Oppose the removal of links from the results of name searches of public figures.
  • Advocate for transparency in the criteria and processes used by search engines in RTBF decisions.
  • Continue to promote the practice of name indexing to ensure the continued availability of content for historical and research purposes.
  • Advise library users, in national or regional contexts where a right to be forgotten regime may be in force, to search the Internet through more than one national instance of a search engine (e.g., google.ca or google.fr), with more than one search engine and with a variety of search terms, so as to maximize their chances of locating desired information that may have been published on the Internet. 
  • Support individuals who request assistance in finding more information on the application of the right to be forgotten to their individual circumstances.

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