I can never understand the ‘right to be forgotten’. How does that not conflict with another right, my ‘right to remember’?
If you allow that, do I not have the right to share that information with my friends? Strangers?
If I can do that as an individual, why does it change if I group together with other individuals and form a company?
It's a similar thing with patents. No one can really forbid (or enforce a ban) you from completely independently coming up with the same idea and executing on it in your garage for personal purposes. However if you then try to commercialize the same idea, you have to face the reality of the world of patents.
Presumably you don't mean your own life or data, or that of your friends and family where you can find consent.
So what's left is arguing for a right to remember strangers with high degree of accuracy, which is just fucking creepy no matter how you defend it.
And no, you don't have that right. Clearly trumped by the right to privacy. Unless you wanna defend some dude sitting outside your house (public property) recording you and your family's comings ans goings in a journal (which is already prohibited under most precedents around privacy, btw).
So unless it's some weird exercise in pedantry around accidental collection of background data (should you be forced to delete a photo because it has someone else in the frame? No but you shouldn't be able to make it _generally public_ either, a picture frame in your house is fine. Facebook is not) I've either missed something you or you lack obvious social skills? Help me out here
Here is an example that is not hypothetical. I know someone who was sexually assaulted by someone they knew. They went to the police, and charges were brought. However, there was not enough evidence to convict, and the perpetrator was not convicted.
The victim decided to write their story and publish it on their blog. They don’t want to sweep their assault under the rug, and they want other people to know what the perpetrator did to them. They want to protect other people who might not realize what the perpetrator is capable of, and warn them to beware. They also are trying to deal with the fact that they couldn’t get a conviction, and want to know that at least some good can from their experience in protecting possible future victims.
So do they have the right to publish this story? Do they have the right to tell friend and family and anyone who might be listening, “don’t trust this guy! He assaulted me and got away with it!”
I believe it is everyone’s fundamental right to share their experience, even if that includes someone else in them. Of course, this doesn’t mean you can slander anyone you want, but in this case they are telling the truth. Now, that truth wasn’t enough to convict, but it is enough to not be subject to defamation charges.
So should that person be prevented from naming names in their blog? Are they allowed to tell people who go on a date with the perpetrator, “hey, here is what happened to me, be careful.” Or is the perpetrator allowed to just sweep it under the rug and keep the victim silent?
Only if you don't make economic or work use of it. See Article 2, Paragaph 2 item c of the GDPR:
> Article 2- Material scope
>
> 1. This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.
> 2. This Regulation does not apply to the processing of personal data:
> (a) in the course of an activity which falls outside the scope of Union law;
> (b) by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU;
> (c) by a natural person in the course of a purely personal or household activity;
> (d) by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.
Granting whatsapp (or any other app that sends home a copy of the address book) access to the address book without the consent of everyone stored there might be a violation.
> (18) This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities.
Reminder that, "articles" are the regulations themselves, and "recitals" are kind of supplementary FAQ-style clarifications about how/when to apply the articles.
Imagine, for example, that you were falsely arrested for murder and then cleared of the crime.
It's very likely this would kill your career because employers Googling you would see the articles about your arrest.
In Europe, you would have a right to hide these articles from search engines.
Ok, but let's also imagine the opposite... let's say I am assaulted, but fail to get a conviction for the person who assaults me.
Am I allowed to tell people that I was assaulted by the person? Am I allowed to write down my story of being assaulted, and tell other people about my experience? Can I warn my friends about this person?
If I write up my personal experience of being assaulted and post it on my blog, can my assailant order me to take it down just because I was unable to get a conviction? Can someone else force me to take down my own story about my own life, just because it involves someone else?
I can't imagine telling a rape victim, "sorry, you don't get to tell people your story because you weren't able to get a conviction"
Yes. "Right to be forgotten" applies to corporations, not individuals.
> If I write up my personal experience of being assaulted and post it on my blog, can my assailant order me to take it down just because I was unable to get a conviction?
No.
However, your assailant would likely to able to get it taken down if they sued you for defamation. If a court had failed to find evidence that they assaulted you, they'd probably win.
> I can't imagine telling a rape victim, "sorry, you don't get to tell people your story because you weren't able to get a conviction"
"Right to be forgotten" (and the somewhat related GDPR) don't do this. They just tell corporations that they can't store data on the assailant (or the victim) if either of those people requests the data be deleted.
This exact scenario is extremely common due to defamation laws, though.
This isn’t usually true. The burden of proof is really high in a criminal case, so you can fail to get a conviction even when there is fairly good evidence of guilt. The burden is reversed in defamation cases, and the person claiming defamation would have to prove the person was lying, which would be impossible if the person actually committed the crime. There are a LOT of cases where there is not enough evidence to prove either side is telling the truth.
> "Right to be forgotten" (and the somewhat related GDPR) don't do this. They just tell corporations that they can't store data on the assailant (or the victim) if either of those people requests the data be deleted.
Ok, but if I write up a blog post about my experience being assaulted, does that mean I can’t have my blog indexed by Google? I don’t have the right to promote my story and get as many people to read it as possible?
Using just the example of rape, there is rarely "fairly good evidence" because it's an event that typically happens in private. If the victim is unwilling or afraid to immediately be examined by (potentially abusive) police, then there is no contemporaneous evidence of the event. It becomes "he-said, she-said" right away.
Other types of assault may happen with eye witnesses, but even then, if your eye witnesses can't get you convicted of a crime, then they're probably not going to help much in a civil suit.
> the person claiming defamation would have to prove the person was lying
This is true in the US and most countries, but the problem is that the suit itself can be expensive and painful enough that the victim just deletes the blog post (or disavows it) to make it the suit go away. They may do this even though they'd likely win the case eventually.
> but if I write up a blog post about my experience being assaulted, does that mean I can’t have my blog indexed by Google? I don’t have the right to promote my story and get as many people to read it as possible?
No, no one has "the right" to have their website indexed by Google. Google is a private, for-profit business, not a public utility. People should have the right to speak (and in the US they do), but they don't/shouldn't have the right to be published and promoted by private companies.
Taken to its logical extreme, if Google were allowed or forced to index everything on the web, they would also have to include (and promote) sites that they may find morally repugnant, which is a violation of their First Amendment rights.
Yes and no. The burden of proof for both sides is lower in a civil case. You might well be able to ‘prove’ that you didn’t commit a crime if you had a good enough story and convinced the jury of it.
In Germany it seems that your hypothetical rape victim could go to jail:
> Criminal Code (StGB) - Section 186 - Defamation
> Anyone who asserts or disseminates a fact in relation to another which is likely to make him despicable or belittled in public opinion shall, unless this fact is demonstrably true, be punished with imprisonment for up to one year or with a fine and, if the act is committed publicly, in a meeting or by disseminating content (Section 11 (3)) is punishable by imprisonment for up to two years or a fine.
Source: https://www.gesetze-im-internet.de/stgb/__186.html (through Google Translate)
In Brazil it isn't much different:
> Slander (pt: _calúnia_)
> Article 138 - Defaming someone, falsly attributing them a fact defined as a crime:
> Punishment - imprisonment of six months to two years and a fine.
> Paragraph 1 - Whoever propagates or divulges such attribution knowing its falseness shall be subject to the same punishment.
> Paragraph 2 - The defamation of the dead is punishable.
> Paragraph 3 - Exception of Truth - Proving the truth of the attribution is admited as a defense, except:
> I - If the offend person's conviction isn't unappealable if the crime of the attribution can only be charged by private action.
> II - If the fact if attributed to any of the people listed on item I of article 141. [these are basically civil authorities and the elderly]
> III - If the accused was absolved through an unappealable decision, even if the crime can be charged by public action.
Source: http://www.planalto.gov.br/ccivil_03/decreto-lei/del2848comp... (my translation)
Note that "public action" means that the government can file the criminal charges even without the victims consent and "private action" means that the victim or their family has the sole power to charge the accused and has to the work of prosection. The "public action through represenation" is the case when the goverment does the prosecution but only at the victim's request.
Note that these laws are probably full of complicated jurisprudence creating exceptions for cases of public relevance and for "desabafo" (venting).
I'm not going to take this in a political direction, but make of that what you will.