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‘The right to be forgotten’ – the answer to revenge porn?

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About The Author

Helen Morse (Writer)

Helen is studying Law (European & International) LLB at the University of Sheffield, now entering her final year having spent an Erasmus year at the University of Vienna, Austria. Helen is interested in international and commercial law. Outside of law, Helene is a keen sports woman, playing at county level.

This week the first person to be found guilty of the new ‘revenge porn’ offence has been sentenced. Jason Asagba was charged this May after posting intimate pictures of the victim on Facebook as well as texting the images to her family. The 21-year-old was convicted under new legislative provisions in England and Wales, introduced in April by the Criminal Justice and Courts Act 2015, which specifically criminalises the disclosure of private sexual photographs or films without the consent of an individual and with the intent of causing them distress. Asagba faces a maximum penalty of two years imprisonment.

The conviction shows that the new provisions have already had an impact and those circulating revenge pornography will now be held to account. However, as highlighted in a previous Keep Calm Talk Law article, whilst criminalisation has its merits, it is not the full solution. Prosecuting those responsible for revenge pornography only goes so far. It does not remove the posts or stop the distress for the victim, knowing the images are still on the internet for all to see. What the victims really want is a remedy.

Is the ‘right to be forgotten’ the solution?

The EUs so-called ‘right to be forgottenis not without its controversies, as discussed by Chris Bridges when the ruling was handed down by the European Court of Justice (ECJ). However, it could be the remedy ‘revenge porn’ victims so need. 

In the case Google Inc v Agencia Espanola de Proteccion de Datos, the ECJ held that natural persons have the right to ask search engines to remove links with personal information about them. The judges based their decision on the 1995 Data Protection Directive, making it directly applicable to the UK.

Under the directive, ‘data controllers’ (e.g. search engines) are under certain obligations when handling data. For example, they must ensure that the data is accurate and they can only collect data for legitimate purposes. Therefore, the court held that the ‘right to be forgottencan be engaged when the information is inaccurate, inadequate, irrelevant or excessive for data collection purposes, i.e. not in line with the provisions of the directive.

The ECJ emphasised that the ‘right to be forgottenis not absolute. For links to be removed from a search engine, the right must override ‘not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.’

However, I cannot see how the distribution of intimate, private images without the individuals consent can be justified in any way against this balancing test. I believe a ‘revenge porn’ victim is very likely to be successful in removing any links to their unwanted personal information on the grounds it is either irrelevant or inaccurate (if their images were linked to a prostitution website, for example).

If the individual was a public figure, this would need to be taken into account during the balancing test, as the judges did highlight in paragraph 97 of their decision. But again, whilst this may be a relevant consideration for links to information about an individual’s criminal past or their professional history, I do not think it is relevant in the case of ‘revenge porn’, even when the individual is a public figure.

Of course it is important to understand that the ruling does not concern deleting personal data off the internet entirely, but merely removing links to the data when the individual’s name is searched, thus rendering it more difficult to find.

Can this really be said to be an adequate remedy for ‘revenge porn’ victims?

I would argue yes, or at least it is a step closer. Of course knowing those images are on the internet in the first place is awful for victims, and must be tackled, as the new criminal offence is doing, but I believe the images being associated with the victims’ names is the most damaging factor. It can hinder a victim’s chance of getting a new job, ruin their reputation amongst family, friends and colleagues and generally harm their long-term mental well-being.  

Link removals from search engines will stop a victim’s name being associated with the intimate or compromising images on a widespread basis, even if it does not get rid of the images all together. Google, for instance, holds around 90% of the total search engine market in the EU. Therefore, link removals from Google will, in many cases, be synonymous with the images ceasing to exist entirely, as it will make it near impossible for the public to find the victim’s images, unless they specifically know what websites they are posted on.

Another key advantage to the ‘right to be forgottenas a remedy for ‘revenge porn’ is that it applies globally.

Many victims find when they type their name into a search engine, the images or films are associated with prostitution sites, pornography sites or even specific websites set up to facilitate ‘revenge porn’, such as the infamous myex.com, which are often based outside of Europe. Previously it was wholly dependent on the goodwill of the website operators on whether the images were removed. In particular, US websites are protected by a law which states that they cannot be prosecuted for content posted on their sites by their users (s. 230 US Communications Decency Act). US website owners are therefore under no obligation and have no incentive to remove images at an individuals request.

However, the ECJ made clear that the ‘right to be forgottenmust be complied with, even if the physical server of a company processing the data is located outside of Europe. The European Commissions Ms Reding stated on a Facebook post that the decision meant US firms ‘can no longer hide behind their servers being based in California or anywhere else in the world,and added ‘non-European companies, when offering services to European customers, must apply European rule.

Once images are posted on the internet, it is no longer a national issue. Victims of ‘revenge porn’ need to be offered a more robust form of protection where the remedy is not limited by jurisdiction. The decision of the ECJ on the unrestricted territorial scope of the ‘right to be forgottenensures this for victims. Search engines, such as Google, which may be based outside of Europe, must investigate and, where required, take down links to unwanted personal data under EU law. 

Will ‘the right to be forgotten’ work in practice?

A number of search engines offering services in the EU have taken steps to comply with the ruling on an individual’s ‘right to be forgotten’. Google for example launched a framework to deal with requests to remove links to personal data, including an online form for making such requests.

However, it is unclear how search engines will determine whether information is inaccurate, inadequate, irrelevant or excessive. The decision is likely to be complex and take time, a less than ideal solution for victims of ‘revenge porn’. Equally, Google’s initial request form does not allow individuals to specify the nature of their request. This means search engines have no way of prioritising how they deal with requests, delaying the decision making process and all the while victims’ names are still being negatively associated with the images the perpetrator posted.

If a search engine refuses to remove the links, a UK citizen does still have the option to complain to the national courts or the Information Commissioner’s Office (ICO), who is the UK’s supervisory body for data protection. According to the European Commission, public authorities will have final decision on the application of the ‘right to be forgotten’. Whilst I fully support having a superior authority having the ultimate say, rather than the search engines themselves, again I envisage this process taking time or even being an added source of distress for the victim if the case has to go through the courts.

There is clearly still a long way to go in order to ensure that requests for personal data link removal is as effective and efficient as possible, reducing the amount of suffering for a victim of ‘revenge porn’. 

Further, whilst this solution is helpful in removing incorrect association to prostitution or pornography websites via search engines, as discussed above, it is not clear whether the Google Spain decision applies to the search feature on social media platforms such as Facebook, Twitter or Instagram. Given the fact that much ‘revenge porn’ activity is directed through these sorts of platforms, this is of great concern.

As mentioned above, the ECJ’s decision applies to search engines because they are ‘data controllers’ for the purposes of the Data Protection Directive. Social media platforms are not primarily used to search for personal information, as a search engine is. However, they do collect personal data, order it and have functions allowing users to search the data. Arguably, operators such as Twitter may have to disable the searching functionality of a particular name, on request, even if the tweet is left on the timeline history. This is the type of question that is ripe for consideration by a judge and it remains to be seen what the answer would be. 

Conclusion

There is no doubt criminalisation and the prosecution of individuals like Jason Asagba is a positive step in the fight against ‘revenge porn’. It provides a sense of justice for the victims and hopefully acts as deterrence. However, it fails to provide victims with a practical remedy, removal, which is what I feel victims ultimately want.

This is where ‘the right to be forgotten’ could bridge the gap. It offers a solution to the more long-term effects of ‘revenge porn’ by allowing for the removal the damaging associations that can appear when a victim’s name is entered into a search engine. I am conscious of the short-comings of the application of the ruling and know it is not the full solution to the worrying trend of ‘revenge porn’. However, in conjunction with the criminal offence and other social measures, such as education in schools and advertising campaigns in order to change attitudes, I feel the ‘right to be forgotten’ could hold an important place in the answer to ‘revenge porn’.

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Tagged: Criminal Law, European Union, Privacy Law

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