The Right to be Forgotten – Should We Possess the Right to have Embarrassing Information Removed from the Internet?

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The rise of the digital age and social media sites has seen an erosion of privacy, with photos, emails, and other information being distributed across the web for all the world to see.

Many of us have been plagued by the prospect of ancient but incriminating posts on social media, embarrassing photos or unsavoury emails surfacing later down the track and potentially jeopardising our future lives.

But what if you had the chance to have this data removed from the internet – permanently?

This is becoming a reality in Europe, which has led a movement towards the ‘right to be forgotten.’

But is such a right necessary, or even desirable?

What is the right to be forgotten?

Essentially, the right to be forgotten refers to the right of individuals to have personal information and data removed from the internet.

This may include photographs, newspaper articles which make reference to a particular person, online posts, videos and so on.

The move towards the right began in 1995, when the EU adopted the European Union Data Directive.

The Directive regulates the processing of personal data within the EU, and was intended to protect the interests of individuals online.

In May of this year, a Spanish man by the name of Mario Costeja Gonzlez tested the limits of the right to be forgotten. He sought to remove a link to an online article which advertised a house that he had foreclosed on.

The European Court of Justice held that the right applied, and accordingly, found that search engines such as Google are responsible for removing material which is ‘inadequate, irrelevant, or no longer relevant.’

Costeja’s case essentially upheld the right to be forgotten as valid law and set a precedent for others wishing to have personal data removed from search engines.

So what’s the problem?

It’s no doubt that many of us would seize the golden opportunity to remove evidence of a particularly brutal night out, or those misguided comments that we may have made in our youth.

And for these purposes, a right to be forgotten may indeed be desirable to many.

But on the flip side, how would you feel if you knew that politicians, social commentators and other public figures could also remove evidence of their prior wrongdoing?

Only a few months ago, Sydney University Professor Barry Spurr found himself in hot water after it was alleged that he had sent a number of sexist and racist emails to his colleagues.

Should people like Barry Spurr be allowed to walk away scot-free?

Surely, most of us would be horrified at the prospect of public figures being completely unaccountable for their past actions. But these are the types of dangers posed by the right to be forgotten.

There’s also an economic argument against such a right – estimates are that it would cost businesses in the United Kingdom up to £360 million in enforcement costs.

Search engines would also suffer an economic blow and incur an immense administrative burden in upholding the right.

Since the laws came into force, Google has received over 70,000 requests for data to be removed.

Whilst search engines such as Google have considerable financial resources at their disposal, smaller search engines may lack the financial and technological resources to process these requests.

Indeed, this was one of the findings of the House of Lords European Union Subcommittee, which stated that the European Court of Justice orders against Google resulting out of the Costeja case were ‘unworkable.’

There have also been concerns raised about the power of search engines to remove data.

By allowing search engines to have the final say in removing certain information, there’s a risk that search results will become biased and skewed.

Google recently published the list of criteria that they consider when deciding whether to remove a link. And it’s complicated to say the least – the House of Lords dubbed the criteria ‘vague, ambiguous and unhelpful.’

These issues suggest that any moves to adopt such a right in Australia should be carefully weighed against the potential risks associated with it.

The right to be forgotten is not yet on the drawing board in Australia, so it seems that we will not have to consider these issues for some time, if ever.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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