In its 2012 “Enemies of the Internet” report, Reporters Without Borders voiced reservations about a proposed European Commission directive and regulation on online personal data protection that would enshrine the “right to be forgotten.”
Under the proposed reform, people will be able to have their online personal data deleted “if there are no legitimate grounds for retaining it.” All websites, both those hosted inside the European Union and those hosted outside it, would be obliged to comply with requests in the absence of such grounds.
This poses a real risk for freedom of information, as individuals would be able to invoke a right of deletion when content no longer suits them, a right that could override the public interest in the information remaining available.
Reporters Without Borders is particularly concerned about the leeway that the directive would allow each member state when transposing it to national law, as “a directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods” (article 288 of the Treaty on the Functioning of the Europe Union).
Yesterday, Reporters Without Borders received a response from the spokesperson of Viviane Reding, the European Commission vice-president responsible for justice, who is the initiator of this directive. The reply follows.
March 14th, 2012
Dear Ms. Morillon,
I read your report in "Internet Enemies 2012" on the right to be forgotten and I would to respond in the name Viviane Reding, Vice-President of the European Commission and EU Commissioner for Justice, Fundamental Rights and Citizenship. Could you please post this response on your website?
I would like to clarify some misconceptions about your report on the right to be forgotten and online free speech. In a speech on November 8, 2011, EU Justice Commissioner Viviane said that the implementation of the right to be forgotten within European data protection law will not affect the job of journalists to report and store stories of public interest. The right to be forgotten is very specific: the idea is to give more control to users so they can request that their personal information – profiles, photos or contacts – that they put online themselves are permanently deleted if they do not want this information to be used and if there is no legitimate reason to retain such data.
The right to be forgotten is not an absolute right. The proposed Regulation, which the European Commission adopted on 25 January 2012, provides for very broad exemptions to ensure that freedom of expression can be fully taken into account. This will allow, for instance, news websites to continue to operate on the basis of the same principles.
Viviane Reding has always stood for freedom of expression, a freely accessible Internet, and freedom of information via the Internet. She has repeatedly said that blocking the Internet has never been and never will be an option. Viviane Reding has a track record during her entire career as a defender of the freedom of the press and the media, including three terms as a Commissioner, first for media, then telecoms and now as the fundamental rights Commissioner.
For example, during the debate on the EU Telecoms Package in 2009, some politicians wanted to include in this legislation provisions that would have authorised a "three-strikes solution" to protect copyright. She opposed this at the time. Despite significant political pressure, she supported – in the name of the European Commission and in close alliance with the European Parliament – the inclusion of an "Internet freedom provision" in the final text of this legislation. This "Internet freedom provision" represents a great victory for the rights and freedoms of European citizens. Under this provision, "three-strikes laws", which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law.
Viviane Reding would never support legislation that would hinder the crucial role of journalists in our society. Mrs. Reding, as a former journalist, is very conscious and respectful of press freedom and free expression.
Regarding the practical implications of the proposals, the right to be forgotten does not mean that someone will be able to have all his personal data deleted following each request. If, for example, the retention of the data is necessary for the performance of a contract or for compliance with a legal obligation, the data might be kept as long as necessary for that purpose.
In your comment about the right to be forgotten, you said that a debate is necessary about the proposals. That is exactly what is happening now that the proposals have been officially presented. The European Commission welcomes this debate, which should be based on a solid understanding of the proposals.