Thursday, October 16, 2014

Japan's right to be forgotten

I am still trying to come up with a good answer for when people ask me about my job. More often than not, eyes start to glaze over before I even finish saying "I work for a Japanese telecom policy research organization." Nevermind explaining what that entails.

So it does my heart good when I get to write about topics that come up at my job, which doesn't happen exceedingly frequently. Typically we monitor telecommunications policy and industry trends that are developing in the US. Sometimes it will involve the US government or private sector interacting with other countries or regions, but that research part of my job usually doesn't relate to Japan. So it gets no JADJ space.

I was thus pleasantly surprised the other day to see the Hill headline "'Right to be forgotten' spreads to Japan."

What is the right to be forgotten?

In recent years, the Internet has ushered in a number of fresh social issues and given new life some old ones. The 'right to be forgotten' is the concept that an individual has the right to control (to an extent) information about oneself in order to protect one's name and reputation. The specifics of this 'right' are still being debated, and I find it to be a somewhat nebulous concept. But it is essentially tied to the right to privacy, I suppose.

This right to be forgotten (I'm going to quit using apostrophes here because I think by now you can tell that it's not a firmly established "right") finds its roots in old French law, which recognizes le droit à l’oubli, which is "the right of oblivion." It essentially allowed convicted and rehabilitated criminals the ability to protest the publication of facts about the crimes for which they served time, or the fact that they were even sent to prison. Its aim was to allow them a fresh start.

So it is that Europe has been the first to embrace the right to be forgotten, which has been extended to apply to the Internet. In May, a man in Spain sued to remove a link to a newspaper article from 1998 that reported on his foreclosed home. Long-story-short, the complaint ultimately found Google as its target. The Spanish court and the European Court of Justice ruled that Google must comply with EU data privacy laws and allow for the removal of such links. Under the right to be forgotten.

The ruling was vague, and legal authorities and regulatory bodies within Europe are still working to come up with guidelines for Google and other search engines to follow. Google has thus far received almost 150,000 of these requests, not all of which must be acted upon.


Publishers like BBC, the Guardian, and Wikipedia have been printing lists of links to their articles that have been removed by Google. Some critics say that this violates the spirit of the EU's ruling - that Google should not be informing publishers when links to their content are expunged.

The arguments against the right to be forgotten are twofold.

1. It clashes with the freedom of speech and the freedom of the press. In the US in particular these are very important, and are protected by our 1st Amendment. Of course each country is free to weigh and balance its own freedoms, but on an international level, with a global Internet this is a challenge. Currently the links that Google removes are only gone from European versions of Google. Forcing search engines to apply a controversial local ruling to a global service, however, could be a tricky proposition.

2. If a right to be forgotten were to preempt freedoms of speech and press, to what end? Can one force the removal of links that provide legitimately useful information but may be inconvenient for the individual? What about politicians seeking the removal of embarrassing stories? Right now Google is deciding which requests to comply with, but ultimately who should get to decide? A private company or regulating body? A government entity? This is all yet to be worked out.


That brings us to Japan. According to Kyodo News (via Japan Times):

The Tokyo District Court on Thursday issued an injunction ordering Google Inc. to remove some Internet search results revealing the name of a man who claims his privacy rights have been infringed upon due to articles hinting he may have been involved in a crime in the past, according to a document obtained by Kyodo News.

Nothing I've read thus far indicates exactly how this man's rights have been infringed upon, though the Kyodo articles notes that the judge said the man had suffered "actual harm." I suppose this is akin to defamation, then.  This isn't the first case of Japanese citizens suing search engines to have results removed (or search algorithms modified), but it does seem to be the first case of this right to be forgotten being extended by a Japanese court.

Extra Reading

If you're interested in a little bit of related Japanese language study, here's a July article from the Japanese version of Newsweek about the right to be forgotten (忘れられる権利).

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