By: Nelson Remolina Angarita (06/XII/2016). nremolin@uniandes.edu.co** Text translated from Spanish to English by Luisa Ricaurte Espinosa, GECTI.

 

The right to be forgotten answers the following question: Do people have the right to change their lives, without being forever chased by the ghost of negative and true information about their past?

It is not an absolute right or superior to others. The application of the right to be forgotten depends on the concrete facts of each case, where we must ask the following:

1) Are there legitimate reasons derived from a particular situation for the cessation of processing of personal data?

 2) In view of this particular situation, do other legitimate reasons prevail for the processing of personal data to continue?

The right to be forgotten should not be “demonized” or “sanctified” a priori. It should be analyzed in each case and take into account that human dignity is its main foundation.

I leave this case for you to analyze and draw your own conclusions:

A girl was raped when she was 12 years old. At that time the news of her violation was widely disseminated in physical and electronic newspapers, national and international. In the news appears the name and surname of the girl along with a photo of the child. The parents authorized this publication.

The raped girl is now a 35-year-old woman and has two children (one is 15-year-old and the other one 13-year-old). When someone searches for information about her on the internet through a search engine, immediately the news about the violent carnal access appears. The search engine sheds more than 120 websites where such information is found. Some are media web pages, others are scanned press clippings that certain people posted on digital social networks and others are websites.

This information is also read by the schoolmates of their children, who on many occasions are the object of mockery for being children of a woman victim of violent carnal access.

This has caused much psychological damage to her and her two children. She, on behalf of herself and her children, asks that everything published on the Internet and in the physical media be deleted and that it cannot be seen by anyone. She also wants search engines not to link her name with news and photos of her that were published more than 23 years ago   due to the violation.

Taking into account the above, you as Judge:

1) Do you believe that the woman has the right to be forgotten and, therefore, would totally or partially accede to the aforementioned request? Why?

2) If so, what orders would you issue for that purpose? And who would you direct such orders to protect the rights of the woman and their children?

3) What do you think is the best way to protect the woman and their children?:

3.1. Order the suppression of the published information?

3.2. Technologically block published information so it cannot be read or indexed by search engines?

3.3. Order the search engines to delete the index of the woman’s name regarding news reporting the facts about her rape?

3.4. Delete the name of the woman in the publications (anonymization or pseudonymisation)?

3.5 Use technological tools to neutralize the possibility of free access to the news of the violation from the mere digitization of the name of the woman in the Internet search engines.

4) Do you believe that the above mechanisms are sufficient to achieve the protection of the rights of the woman and their children?

 

**** VOCABULARY:

“(5) ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person; (Article 4 (5) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC -General Data Protection Regulation-)