The Right to be Forgotten … Explained04.01.20 | Bacilio Mendez II, MLIS, Honors JD/MBA ‘20

@Bacilio | http://bacilio.com

Bacilio is a fourth year Honors JD/MBA student at the GGU School of Law/Edward S. Ageno School of Business.

In 2013, he was named the National Lawyers Guild (NLG) Legal Worker of the Year and was an NLG 2012 W. Haywood Burns Memorial Fellow for Social & Economic Justice.

Prior to law school, Bacilio earned a Master of Library and Information Science from Pratt Institute where he served the Kings County Supreme Court, of the NY State Unified Court System, as the 2010 Nathan R. Sobel Law Library Fellow.

Bacilio also holds a Bachelor of Arts in Modern Dance from Oberlin College and is a union member of both the Screen Actors Guild‐American Federation of Television and Radio Artists and the Actors' Equity Association.

Bacilio Mendez II, MLIS

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Executive Summary

What is the right to be forgotten?When does it apply?

LegalChallengesLet’s GetPersonal

How does California rate?AnyQuestions?

What is the Right to be Forgotten?

1Why is it controversial?

2Why is it difficult to comply?

3Why should you care?

Does the “right to be forgotten” of an individual interfere with the “right to know” of the public?

Giving courts and governments the authority to delete data by exercising the right to be forgotten could lead to a slippery slope of power abuse (e.g., mass censorship).

In Orwell's novel 1984, the fictional Ministry of Truth has the power to rewrite history.

Why is it controversial?01

Stories are rarely about one person. It is not easy to delete information about one individual without affecting others.

What about Big Data? How do we delete someone’s data that deeply embedded in an algorithm?

What about Blockchain? Immutability is central to its technology.

Why is it difficult to comply?02

Why should you care?03We are entering a decade where people are increasingly concerned with how intrusive everyday apps and platforms have become.

Privacy is going to be the currency of the future.

When does it apply?

1The Seven Deadly Sins

2The SevenSaving Graces

3The “Outs”

An individual has the right to erasure if:1. no longer necessary;2. the individual withdraws their consent;3. there is no overriding legitimate interest;4. marketing that an individual objects to; 5. unlawful processing;6. compliance with a legal ruling/obligation; &7. “Will no one think of the children?”.

The Seven Deadly Sins01

The SevenSaving Graces02Reasons cited in the GDPR that trump the right:

1. the right of freedom of expression/info;2. compliance with a legal ruling/obligation;3. public interest or official authority;4. public health purposes;5. preventive/occupational medicine;6. public interest, scientific/historical

research, or statistical purposes; &7. establishment of a legal defense.

The “Outs”03An organization can request a “reasonable fee,” or deny a request to erase personal data if the organization can justify that the request was unfounded or excessive.

2017 | Case Before the Karnataka High Court in India

Legal Challenges

12009 | Wolfgang Werlé & Manfred Lauber

22012 | Mario Costeja González sues Google

3

Wolfgang Werlé & Manfred Lauber012009 | GermanyThe two half-brothers killed famous German actor Walter Sedlmayr in 1990 and were released in 2007 & 2008, respectively.

In 2009, the men demanded the removal of their names from German and English Wikipedia entries, arguing invasion of their right to privacy.

The Streisand Effect is real.

Mario Costeja González022014 | SpainA lawyer and calligrapher from northwestern Spain fought Google in court to have obsolete personal information removed from Internet searches.

Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (2014).

Karnataka High Court032017 | IndiaTwo Judgments & Two Different Outcomes:

1. Petitioner entered a plea for “permanent restraint [on] free public exhibition of the judgment and order.” … No dice.

2. Petitioner’s daughter instituted both criminal and civil proceedings that later settled, but petitioner wanted her identity protected. … Ruling for petitioner.

Let’s Get Personal

1How do you want to be remembered?

2Who should “be in charge”?

3What happens when you die?

How do you want to be remembered?01● By your last like, comment, or share?● By your own curated “image”?● By the community’s remembrance of you?● Do you care?

Who should “be in charge”?02● The platform?● Your family?● Someone of your choosing?● The courts?● You?

What happens when you die?03● Facebook ● Twitter ● Instagram● Snapchat ● Pinterest ● Google

Check yourself, before … you know the rest.

How does California rate?

Which is “better,” CCPA or GDPR?

1

2

California Online Erasure Lawwas the CCPA’s lackluster predecessor.

GDPR Art. 17“shall have the right to obtain [...] erasure.”

3 CCPA § 1798.105(a)“shall have the right to request [...] delet[ion.]”

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Questions?

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https://www.npr.org/2019/09/24/763857307/right-to-be-forgotten-only-applies-inside-eu-european-court-says

https://www.verdict.co.uk/mine-right-to-be-forgotten/

https://www.bangkokpost.com/opinion/opinion/1616086/why-right-to-be-forgotten-is-easier-said-than-done

https://www.dataprotectionreport.com/2018/09/ccpa-extends-right-to-deletion-to-california-residents/

https://www.lexology.com/library/detail.aspx?g=a2ac57fb-8d36-4911-8faa-5ec40a807c38

https://cis-india.org/internet-governance/blog/right-to-be-forgotten-a-tale-of-two-judgments

http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html

https://www.bbc.com/news/world-europe-27388289

https://help.twitter.com/en/rules-and-policies/contact-twitter-about-a-deceased-family-members-account

https://support.google.com/accounts/troubleshooter/6357590?hl=en

https://nypost.com/2019/10/10/google-pulls-hong-kong-protester-role-playing-app/

https://www.eff.org/deeplinks/2019/09/european-courts-decision-right-be-forgotten-case-win-free-s

https://gdpr.eu/right-to-be-forgotten/?cn-reloaded=1

https://carnaclaw.com/news-and-events/commercialbusiness-litigation/california-right-to-be-forgotten-law/

https://www.nytimes.com/2009/11/13/us/13wiki.html?partner=rss&emc=rss

https://www.newsweek.com/man-who-sued-google-be-forgotten-252854

https://www.stanfordlawreview.org/online/privacy-paradox-the-right-to-be-forgotten/

https://support.snapchat.com/en-US/i-need-help?start=5640758388326400

https://www.independent.co.uk/life-style/social-media-what-happens-when-you-die-instagram-facebook-twitter-gmail-pinterest-a8706126.html

https://blog.zwillgen.com/2017/08/09/googles-fight-canadian-injunction-mean-right-forgotten/

https://epic.org/privacy/right-to-be-forgotten/

https://thedataprivacygroup.com/premium-blog/2019/8/30/ccpa-erasure-law-vs-gdpr-right-to-be-forgotten

https://www.varonis.com/blog/right-to-be-forgotten/

https://iapp.org/news/a/how-does-californias-erasure-law-stack-up-against-the-eus-right-to-be-forgotten/

https://www.youtube.com/watch?v=BjCO_aFblHo

https://www.theguardian.com/commentisfree/2014/jun/24/right-to-be-forgotten-censoring-google-results

https://time.com/98554/right-to-be-forgotten/

https://www.youtube.com/watch?v=r-ERajkMXw0

https://help.instagram.com/264154560391256

https://www.facebook.com/help/103897939701143

https://ec.europa.eu/info/law/law-topic/data-protection_en

References

The Right to be Forgotten … Explained04.01.20 | Bacilio Mendez II, MLIS, Honors JD/MBA ‘20

The Right to be Forgotten … Explained04.01.20 | Bacilio Mendez II, MLIS, Honors JD/MBA ‘20

Thanks!

@Bacilio | http://bacilio.com