Lawyer Marnie Tonson of the Philippine Internet Freedom Alliance (PIFA) said on Monday, January 22, that the complaint filed by businessman Wilfredo Keng before the National Bureau of Investigation (NBI) “goes even deeper” and shows “implications of a burgeoning 'Right of Erasure', more popularly known as the 'Right to be Forgotten’”.
The Right to be Forgotten gives individuals the power to request for the removal of information that are personal in nature. This can be invoked if the published information cannot be justified.
Much of the issue surrounding the principle of the Right to be Forgotten stems from two landmark rulings in the European Union and Australia involving tech giant Google. In both cases, the courts ruled against Google as a search engine. The websites where the articles were published were excluded in the final ruling.
The rulings have severe implications on the freedom of expression and privacy in the context of the internet.
‘Not absolute’ in the EU
Much of the issue surrounding the principle of the Right to be Forgotten stemmed from a case heard by the European Court of Justice (ECJ).
An individual named Mario Costeja Gonzales took to court to complain about the online existence of articles published in 1998 about the repossession of his property to pay off his debts. He argued that the continuous existence of these articles was bad for his image, adding that the debt problem had been resolved.
In its May 2014 ruling, ECJ demanded that Google remove the data from its indexes. The articles, however, could not be unpublished from the newspaper’s site because it is covered by laws protecting media entities.
In an effort to clarify what the ruling meant, the European Union said that individuals can invoke this right only with search engines. This means that information – deemed “inaccurate, inadequate, irrelevant, or excessive” can be removed from search indexes.
The Right to be Forgotten, however, is not absolute. The application should be weighed vis-a-vis fundamental human rights such as the right to freedom of expression and the rights of the media.
“The right to be forgotten is certainly not about making prominent people less prominent or making criminals less criminal,” the EU said.
In applying this principle, the EU has to consider:
'Defamation' in Australia
Google did not only face complaints in the EU. It also went through a long legal battle involving search results in Australia.
In 2009, a certain Dr Janice Duffy demanded that Google remove search results leading to posts in a website called the Ripoff Report, which accused her of stalking and harassing psychics. She claimed that they “defame” her as a doctor, and that people who search her name often come across the links to the derogatory articles.
When the tech company failed to respond, she filed a lawsuit before the South Australian Supreme Court in 2011, adding that the auto-complete search term involving her name was also defamatory.
Google, however, said they should not be held responsible for something published by an independent company. Yet, in 2015, the Court ruled that the tech giant published defamatory material about Duffy. It ordered the company to pay more than $100,000 in damages.
In 2017, the Court dismissed the appeal filed by Google.
The difference between the EU ruling and the Australian ruling is that the EU ruling was clearer. The EU court clearly defined the parameters of the application of the Right to be Forgotten and said it was not absolute and was subject to several considerations.
Meanwhile, the Australian ruling opens “floodgates” to further lawsuits against Google because it essentially found that the tech company is "legally responsible" when search results link to defamatory content on the web, according to advocates of free speech. It was silent on the liability of websites.
In an email to Rappler, Duffy said that she went after Google because it was a company that “controls the internet" and it was responsible for showing harmful information.
“Google controls the Internet and more than 90% of searches are conducted using Google,” she explained. “In the internet age the first thing employers do is ‘google’ a job candidate and getting a job when false accusations of criminality are indexed at the top of a the search results is impossible.”
“Individuals have the right to freedom of oppression from powerful corporate interests and a right to dignity and privacy and that is what my precedent and the right to be forgotten is really about,” she added.
Not yet in PH but...
The Right to be Forgotten is not yet applicable in the Philippines. But according to Tonson, recent indicators present here are definitely valid causes for concern.
“I have friends in Wikipedia who toil each day correcting the creeping historical revisionism to pages regarding the Martial Law period,” he said.
Meanwhile, relating this case to the complaint against Rappler, Tonson said it depends on whether the local court will consider in its decision another Australian High Court's ruling, which has caused Australia to be dubbed by press freedom advocates as the libel capital of the world.
Its High Court, in a case involving a blogger and two businessmen, has ruled that each new download from the internet can be considered "fresh publication" making the maximum period of 12 months for a person to take action irrelevant.
The National Bureau of Investigation’s Cybercrime Chief Manuel Eduarte said the theory of continuous publication may be applied to the case involving Rappler even if the story on the complainant, businessman Wilfredo Keng, was first published in 2012. Eduarte even said that Keng can be presumed to have seen the article only after the Cybercrime law was passed.
But Sol Mawis, Dean of the Lyceum Law School, said that "it cannot be a continuing crime because there’s only one criminal intent. If you published today, your criminal intent today would be different from your criminal intent tomorrow.”
What is clear, however, is that past cases invoking the Right to be Forgotten and similar principles did not hold news media outlets liable. – with reports by Lian Buan/Rappler.com
Jodesz Gavilan is a writer and researcher for Rappler and its investigative arm, Newsbreak. She covers human rights and also hosts the weekly podcast Newsbreak: Beyond the Stories. She joined Rappler in 2014 after obtaining her journalism degree from the University of the Philippines.