Freedom of expression and right to be forgotten: The counter balance in law and practice

66 FREEDOM OF EXPRESSION AND RIGHT TO BE FORGOTTEN The counter balance in law and practice Ngo Huong, Lecturer, School of Law Vietnam National University Hanoi Email nmhuongvn@gmail com Abstract This paper addresses the extent which freedom of expression (FOE) and right to be forgoten (R2F) have been contested in law making The international standards and norms of FOE are established The review of law and practice of European system, USA and some states in ASEAN like Indonesia, Singapore, Thaila[.]

FREEDOM OF EXPRESSION AND RIGHT TO BE FORGOTTEN:

The counter balance in law and practice

Ngo Huong, Lecturer, School of Law- Vietnam National University Hanoi

Email: nmhuongvn@gmail.com

Abstract

This paper addresses the extent which freedom of expression (FOE) and right to be forgoten (R2F) have been contested in law making The international standards and norms of FOE are established The review of law and practice of European system, USA and some states in ASEAN like Indonesia, Singapore, Thailand and Vietnam which are selected to represent different state of practice and laws The analysis shows these states are variably political committed to FOE in laws But the challenges for FOE is placed by evolving need to recognise right to be forgotten is placed by emerging use of artificial intellectuals States with strong values on freedom of expression have made changes in protecting right to be forgotten

in laws, including privacy and personal data protection and internet use Some states in ASEAN, though recognise FOE in their constitutions and laws, but often make non-compliance with international standards on the ground of national security needs Neither of these positions seems generally justified Research implications include a need for freedom of expression and right to be forgotten to have norms and standards as basic human rights, in particular practice of restricting this freedom which imply that states needs to have a common understanding on FOE, R2F and to provide sufficient protection on personal privacy and the extent to which states can pose restrictions by legitimate manner in law

TÍNH TƯƠNG XỨNG CỦA TỰ DO NGÔN LUẬN VÀ QUYỀN ĐƯỢC LÃNG QUÊN TRONG THỜI ĐẠI SỐ: Pháp luật và thực tiễn

TS Ngô Minh Hương Khoa Luật – Đại Học Quốc Ngo Huong Email: nmhuongvn@gmail.com

Tóm tắt

Bài viết này đề cập đến mức độ và tính tương xứng giữa tự do ngôn luận (FOE) và quyền bị lãng quên (R2F) trong quá trình xây dựng và thực thi pháp luật khu vực và quốc gia Các tiêu chu n quốc tế của FOE đã được thiết lập Việc xem xét luật pháp và thực tiễn của hệ thống châu Âu, Hoa Kỳ và một số quốc gia trong ASEAN như Indonesia, Singapore, Thái Lan và Việt Nam được chọn để đại diện cho các quốc gia về quá trình hình thành cơ sở pháp

lý và xây dựng pháp luật Các phân tích cho thấy các quốc gia có các cam kết chính trị đối với quyền tự do ngôn luận trong pháp luật khác nhau Có những thách thức đối với tự do ngôn luận trước sự gia tăng về nhu cầu bảo vệ bí mật đời tư và thông tin cá nhân trong thời đại số

và gia tăng việc sử dụng trí tuệ nhân tạo Các quốc gia có giá trị mạnh mẽ về quyền tự do ngôn luận đã tạo ra những thay đổi trong việc bảo vệ quyền bị lãng quên trong luật pháp, bao gồm quyền riêng tư và bảo vệ dữ liệu cá nhân và sử dụng internet, đặc biệt là Châu Âu và Mỹ Một số quốc gia trong ASEAN, mặc dù công nhận tự do ngôn luận trong hiến pháp và luật pháp của họ, nhưng thường hạn chế tự do này trên cơ sở vì sự cần thiết cho an ninh quốc gia

Cả hai cách này đều có vẻ không hợp lý Ý nghĩa của nghiên cứu này bao gồm tự do ngôn luận và quyền bị lãng quên cần được quy định có sự tương thích để đảm bảo quyền cơ bản của con người, đặc biệt việc thực hành hạn chế quyền tự do ngôn luận vì mục đích đảm bảo bí mật đời tư và thông tin cá nhân, quyền được lãng quên cũng cần quy định rõ Nghiên cứu ngụ

ý rằng các quốc gia cần có hiểu biết chung về tự do ngôn luận, quyền được lãng quên và cung cấp sự bảo vệ đầy đủ về quyền riêng tư cá nhân, quyền được lãng quên và mức độ mà các quốc gia có thể đặt ra các hạn chế theo cách hợp pháp trong pháp luật

to share without declration or under control measure This implies possible increase in use of internet and need for regulation This creates the fear and threat for the loose of personal data but conflicting of other freedom of expression

In the digital age and the rise of artificial intelligence, information sources and data are circulated at high speeds and quantities, and personal data is no longer under the control or

possession of one person The question is whether there is an individual's right to control and

decide their information and if so, how and how to protect it Although the concept of right ot

be forgotten has not been clarified in international law on human rights, in many areas and

many countries have developed a legal framework and measures to ensure this right Many cases on the media, through judicial cases and legislative experiences can be consulted and more and more clarified concepts and mechanisms to protect forgotten rights In principle, the

right to forgotten is the right to be given to individuals and organizations so that they have the

capacity to control personal data more effectively, or they are selected with consensus when using information about them The question is whether the right to be forgotten can be considered a human right, and should be regulated and enforced within the international, regional and national human rights laws? In the digital age and artificial intelligence, there are increasingly challenges for forgotten protection mechanisms, including the challenge of ensuring an individual's right to be forgotten in balance and ensuring Other personal rights such as freedom of expression Therefore, necessary legal, economic and technical measures are needed, on the one hand, to protect forgotten rights, one balanced with the information needs for development and the public's interest

Media becomes transnational actor that enables wider exercise of freedom of expression and access to information across borders With the emergence of global media, internet or regional television and radio, the ability of state to decide what information they give or their citizens can access is obviously curtailed States nowadays cannot easily ignore criticisms by overseas media which once was the case for the reason of inappropriate attempt

to interfere into the internal politics The demand by the international community is that democracy and free press would be permitted aspiration

The research question is how is balance of freedom of expression (FOE) and the right

to be forgotten (R2F) in the context of wider use of artififical intellectual (AI) and powerful multi-platform data transfer? A research in 2017 147 that addresses the problems of AI in practicing right to be forgo The authors discuss technical issues when strictly adhering to requests for data deletion according to the R2F The research mentions that it may not be possible to fulfill the legal objective of the R2F in the artificial intelligence arena People may require that users' personal data be deleted on a website, but meanwhile, information that may have been copied and / or named anonymously has been sent and sent All of these third-party uses are difficult to track and do not necessarily take into account deleting the original / primary document

2 Evolving counterbalance of Freedom of expression and right to be forgotten: regional and state of practice

Defining Freedom of expression and information

The concept and standards of freedom of expression, as a fundamental human rights

147

Eduard Fosch Villaronga, Peter Kieseberg, Tiffany Li, Humans forget, machines remember: Artificial intelligence and the Right to Be Forgotten, Computer Law & Security Review: The International Journal of Technology Law and Practice (2017), doi: 10.1016/j.clsr.2017.08.007

are encoded in international human rights law and standards 148 The meaning of the right include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers

Freedom of expression is taken as a legal human rights Under international human rights law, 149 freedom of expression is clearly stated in Article 19 of UDHR: ‖Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers….‖

Article 19 of ICCPR embodies the same meaning as UDHR Article 19 (3) allows for

certain restrictions on freedom of expression, including ‗[r]espect [for] the rights of and

reputations of others and [p]rotection of national security or of public order, public health and morals‘ In many cases where government opponents were arrested or detained with criminal

persecution because of their political opinions, the HRC found violations of Article 19 (1) 150

Protection of national security is often cited as requiring prevention or response to serious threats to a nation This extends the meaning of Article 20 to include war propaganda, national, racial and religious incitement So Articles 19 (3) and 20 can be read together And measures to

protect public order or public safety overlap those concerned with national security

Other articles of ICCPR also permit restrictions of rights on the grounds of national security and thus parallel Article 19 151 With regard to national security and other public order grounds, Article 14 (1) provides for the right to public hearings of criminal charges where the press and the public should not be excluded from the public hearing ―for reasons of national security in a democratic society‖ except in certain strictly defined circumstances 152Articles 21 and 22 allow only those restrictions that are imposed by law and that are necessary

―in a democratic society‖ in the interests of national security and/or public safety In several cases, the Committee found violations of these articles together with Article 19 153

There are limitations of freedom of expression Frequent issues and concerns arise around the scope of restrictions on FOE/I permissible understood as the two grounds of national security and public order The HRC, in its General Comments on Article 19, expresses the view that any restrictions may not jeopardise the right itself 154 Restrictions

on FOE/I to protect national security are permissible but only in serious cases such as threat to

148

Article 19 of Universal Declaration of Human rights, Article 19, 20 of International Convention of Civil and Political Rights, Article 10 of European Convention on Human rights

149 1946 UDHR and 1966 Two Bills of Rights (ICCPR and ICESCR)

150 Discussion was cited in Malferd Nowak UN Covenant on Civil and Political Rights, 2nd edition N.P Engel Publisher 2005

151 ICCPR Article 14 (1), fair and public hearing; Article 21, right of peaceful assembly; and Article 22, right to freedom of association which may be read together with Article 14 (fair and public hearing), Article 21 (rights to peaceful assembly) and Article 22 (freedom of association)

152 General Comments on article 14 para 6

153 In case Le Lopez v Uruguay, the alleged victim, a trade union organizer, was arrested and detained under ―security measure‖ and charged with subversive association The committee found violation of Articles 22, 19 (1) and 19 (2)

154

General Comments on article 19 No.10 19th Session, para 4

the entire nation, dissemination of military secrets, calling for overthrow of a government

with political unrest or propaganda of war within the meaning of Art 20 155

In addition, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (the Johannesburg Principles) 156 clearly state: ―Mere publicity of

activities that may threaten national security Expression may not be prevented or punished merely because it transmits information issued by or about an organization that a Government has declared threatens national security or a related interest‖ (principle 8) and ―expression may be punished as a threat to national security only if a government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence‖ (Principle 6)

The case law and application of the Johannesburg Principles could be understood as: (i) Laws imposing restrictions or limitations must not be arbitrary or unreasonable and must not be used as a means of political censorship or of silencing criticism of public officials or public policies 157

(ii) States may not extend the notion of state security so far as to penalize and suppress mere expression of opinion 158 Although it is often seen that anti-state acts, or any preparations to topple a government may likely fall under criminal acts.159

HRC‘s General Comment on Article 19 (para 3) states: ―Many reports of States

parties confine themselves to mentioning that freedom of expression is guaranteed under the Constitution or the law However, in order to know the precise regime of freedom of expression, in law and in practice, the Committee needs in addition pertinent information about the rules which either define the scope of freedom of expression or which set forth certain restrictions, as well as any other conditions which in practice affect the exercise of this right ‖

155 Nowak ibid p 355-464

156 The Johannesburg Principles was endorsed by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in E/CN.4/1996/39 on 22 March 1996 In addition, the Special Rapporteur reiterated that any restriction to the right to freedom of expression on the grounds of protecting national security is only legitimate

if the Government can demonstrate that the expression is intended to incite imminent violence, it is likely to incite such violence, and there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence Cf A/HRC/17/27 dated 16 May 201 Para 36

157 Para 79 (f)

158 This view is understood from several cases against Urugoay (no.8/1977 para 16; no 11/1977 para 17; no 33/1978 para

12 and no 44/1979 para 15) The HRC expresses that if a person is arrested or sentenced for prison for trade unions, political parties, journalism or other anti-regime activities is inter alia the violation of freedom of expression under art

19 This view is also seen in the case of Womah Mukong v Cameroon, Communication No 458/1991, U.N Doc CCPR/C/51/D/458/1991 (1994)

159 No 458/1991 para 9.6 – 9.7 and U.N Doc,CCPR/C/51/D/458/1991,10 August 1994 For instance, in the case of Adyayom et

al v Togo, two university teachers and a civil servant had been detained and charged in 1985 with the offence of lèse-majesté because of their minor criticisms of the Togolese Government The Commission on Human Rights observed that they may

―criticize or openly and publicly evaluate their Governments without fear of interference or punishment within the limits set out

by article 19 paragraph 3‖ Also in case no.422-424/1990 and supra note 17 (cases of South Korea) Many similar cases in the number of non-democratic African regime, the Committee considered that ―the legitimate objective of safeguarding and indeed strengthening national unity under difficult political circumstances can not be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights‖

The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression160 reaffirmed that cases deemed justifiable under principles of permissible limitations and restrictions ―must constitute an exception to the rule and must be kept to the minimum necessary to pursue the legitimate aim of safeguarding other human rights established in the Covenant or in other, international human rights instruments‖.161

The Special Rapporteur on Freedom of Expression stresses: ―The right to freedom of opinion is absolute and may not be limited in any way, whereas the right to freedom is not absolute and may thus be subject to exceptional restrictions and limitations as defined in article 19, paragraph 3, and article 20 of the International Covenant on Civil and Political Rights Such restrictions and limitations must be interpreted in accordance with international human rights law and the principles deriving there from‖ 162

In Europe, FOE is rooted in legal tradition and democratic political culture, it is not surprising that Europe had gone through a paradox between guaranteeing individual FOE as lawful rights and legitimate restrictions on the ground of national security or nation‘s interest 163FOE is well recognised as a constitutional right by the Council of Europe because they were enshrined in international law Although the Treaty of Europe does not mention specific rights it does recognise the principles of human rights under the European Convention of Human Rights (ECHR) Such recognition results from the constitutional traditions common to the Member States Community rights sometimes directly involve fundamental rights guaranteed in the Convention 164 The European Court of Justice (ECJ) saw this standard as a general principle enshrined in Articles 8,9,10 and 11 of ECHR to the effect that ―no restrictions in the interests of national security of public safety shall be placed on the rights secured by above articles other than necessary for the protection of those interest in a democratic society‘.165

European human rights convention in its article 10 on the same means that States can require the licensing of broadcasting, television or cinema enterprises European system also put stricts requirement and test for restricting freedom of expression on the ground of prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary Although, there is long list of conditions – gray in deciding to what extent ―when is neccesary for democratic soceity‖ No one single standard

160

The Special Rapporteurs are part of the Special Procedures of the Human Rights Council In 1993, the United Nations Commission on Human Rights established the mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

164

For instance, restrictions to workers from writings imposed by the Member States on the ground of public security could

be ruled impermissible because it interferes with freedom of expression under ECHR

165

cf Rutily v Minister for the Interior (Case 36/75) ECR 1219 papa 32

for the limitation No perception of moral even in Europe Europe has high ‗margin of appreciation‘ 166

Being ‗necessary‘, meaning that the state shows evidence and need for a restrictive measure to protect national security and, if this is reasonable, it should be at the minimum necessary for that purpose In this circumstance the Committee has tended to apply

a more demanding criterion of democratic necessity 167 Even though the Committee has not applied the proportionality test, it is understood that the requirement for being ‗necessary‘ includes a standard of proportionality 168 Article 10 of ECHR provides more scope for restrictions of freedom of expression and information but at the same time stresses the three tests on ‗prescribed by law‘; ‗legitimate aims‘ and ‗what may be necessary in a democratic

society‘ It says: ―Everyone has the right to freedom [The exercise of these freedoms carries duties and responsibilities] which may be subject to formality, conditions, restrictions as

per prescribed by law and are necessary in a democratic society in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of reputation or rights of others ‖

Because Article 10 of ECHR is still general, the inherent feature and constitutional characteristics of FOE/I in this provision are made clearer by case law of the European Court

of Human Rights 169

This review of European systems of human rights as well as its case law with regard to restriction of FOE/I has underlined some legal and structural issues of concern National legislation contravenes the Covenant in ways that may be interpreted as permissible under the Covenant This means that constitutions and states‘ laws might allow a broad scope of restrictions as well as a broader scope to justify such restrictions There may be cases where the application of law may not be based on the same interpretation as international standards

by means of domestic law There are cases where legitimate tests of restrictions are not met

by the judicial process at the state level However, state parties of ICCPR make reservation for joining Optional Protocol therefore it limits communication to be heard and taken by the HRC and for HRC to recommend corrective methods

Defining the right to be forgotten and privacy

Right to be forgotten is rights for users to agree with consent on their permission to share and use information For example, users and access and sharing of information on the network must click on accepting a conditional use agreement and a provision, which is to push the responsibility for private privacy secrets to the user of the information Thus, information engine connects users with information but does not reveal in detail how their data information

166

The prominent case Handyside v UK, the court ruled that freedom of expression may be limited for the sake of community‘ morality

167 Nowak, pp 350 Also in the case of Mukong v Cameroon Also See Supra note 17 (cases against South Korean)

168 Elizabeth Evatt (1999) in Secrecy and Liberty Pp.89

169 Paul Mahoney and Lawence Early Freedom of Expression and National Security: Judical and Policy Approaches under the European Convention on Human Rights and Other Council of Europe Instruments In ―Secrecy and Liberty Sandra Coliver, Paul Hoffman, Joan Fitzpatrick and Stephen Bowen (eds) Martinus Nijhoff Publisher The Hague, Boston, London, Kluwer Law International 1999

is used 170 The right to forgotten is to allow users to control their own data and information This is also understood as where the person who has the information requested to stop their information and about them circulating, the information processing unit and the platform must remove the information related to this person This right is also understood as the need and opportunity for people to ignore and cut information about their past, but at the same time have the right to connect and gain weight with other people's information online R2F may include: the right to delete information on websites and platforms or data management units In case the information data generated by the system is not active by the user, this right includes the right to remove information about yourself or information posted by others about you and share information about others go online This right is also argued that the rights of internet users keep their communications and activities online for individuals as private lives This is the basic human right. 171 The R2F allows individuals to request network service providers to delete their personal information Although it appeared before but in 2014, the doctrine of the right to be forgotten began to be recognized. 172,

In relation to privacy, R2F relates to personal life, privacy and prestigious and honorable issues Anonymity becomes an important factor in determining "personal data",

"personal identification information", and "identifiable personal information" relating to legal provision on protection of personal data and privacy

The right to be forgotten is under the provisions of the European Community is human rights European Human Rights Convention, provides provision to respect and protection of individuals and family life (article 7; 8) Article 8 of the European Convention on Human Rights, which regulates individual privacy concerns in reciprocal relations with free speech With EU General Data Protection Regulation (GDPR) becoming EU law in May 2018 and replacing Data Protection Directive (DPD), the right to be forgotten now is defined in Article

17 and the out-of-territory scope of the decision can be found in Article 3173 In addition, there will be separate provisions governing the protection of children's privacy The subject of these two rights is everyone, not specifically towards children Council of Europe also stipulates the right to be forgotten because it is restricted only when the subject of the information agrees and the information is processed and saved when the information subject is unintended only when necessary. 174

The right to be forgotten in Europe is put in connection with right to privacy and cyberspace issues European Community regulations also require network companies to delete

170

Daniel J Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 COLUM L REV 583, 587 (2014)

171 Franz Werro The Right to Inform v The Right to be Forgotten: A Transatlantic Clash Georgetown Public Law Research Paper No 2 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1401357

172 Ref Google Spain SL v Agencia Española de Protección de Datos, 2014 access at:

https://en.wikipedia.org/wiki/Google_Spain_v_AEPD_and_Mario_Costeja_Gonz%C3%A1lez

173 On May 25, 2018, the General Data Protection Regulation goes into effect and replaces Decree 95/46 / EC This regulation will set the age for children to start their own decision of 16 years, some countries in the Union allow to reduce to 13 years old, similar to the United States

174

Article 7, Directive 95/46/EC - EUR-Lex Khung pháp lý hiện tại về quyền riêng tư và bảo vệ dữ liệu, được thành lập chủ yếu dựa trên các công cụ như Hướng dẫn OECD năm 1980 về Bảo vệ quyền riêng tư và truyền dữ liệu cá nhân ('Nguyên tắc OECD') và Chỉ thị bảo vệ dữ liệu của Liên minh châu Âu 95/46 / EC ('Chỉ thị của EU')

personal data upon request The European Community requires digital media companies and social networks to strengthen and secure privacy protection, according to EU regulations for users who join the network 175 The responsibility for privacy protection and the right to neglect is not the individual subject to the relevant information, must prove that the information they collect is not necessary to be able to request the removal or removal give up, which network and corporate governance responsibilities 176

The Right ot be forgotten is provided in EU regulations, 177 and so to clarify the concept and the substantive meaning of this right The EU considers this as a fundamental right of European citizens Before the EU made legal provisions on data protection, the right

to be forgotten is the argument that human rights, the right to erase data of information about individuals in the present and the past, including in space network and internet. 178 Right to

be forgotten is specifically defined in Article 17 of the European Parliament and of the European Council on protecting people on personal data and the dissemination of such data Article 16 also stipulates that personal data and information must be handled by a competent agency to prevent, identify and investigate, or criminal trial of, the dissemination and use of personal information Personal information that requires protection or removal will not exist and be processed in the system, if there is no legitimate and legitimate reason to store and transmit such personal information Article 17 also stipulates that the subject of the data has the right to control the deletion of that person's personal information, and does not allow the transmission of that information, especially information about the person and the personal life The reason for this requirement is because the information is no longer needed The subject of personal data and information has the right to withdraw consent to use the information they previously agreed to, or when the time limit for the agreement has agreed Subjects may also object to their personal information being processed online and systematically in accordance with Article 19 of the Regulation However in European regulations, personal data differs from privacy Privacy is understood as the right of a person to be defined in the European Convention on human rights, including respect for confidentiality of private life, influences

on morality and personal prestige 179 With such substantive content and application, Europe has a wider and wider range of rights to be forgotten The change in the legal framework in different countries is different The European Community focuses on personal data control and protection mechanisms through the provisions of the Directive, understood as the General Law of the Community.180 More specifically, the 95/46 / EC decree on data protection regulates access to personal data Personal data is broader definition of private and privacy

175 https://www.theguardian.com/media/2011/mar/16/eu-social-network-sites-privacy

176 Quan điểm của http://europa.eu/rapid/press-release_SPEECH-11-183_en.htm

177 Directive 95/46/EC of 24 October 1995 on the protec- tion of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281 (DP Directive

178 Bert-Jaap Koops, Forgetting Footprints, Shunning Shadows: A Critical Analysis of the ‗Right to Be Forgotten‘ in Big Data Practice‘ 8 SCRIPTed 1 (2011)

179 Von Hannover v Germany App no 59320/00 Yves Poullet, ‗Around the Concept of Privacy: Ethics and Human Rights in the Information Society?‘ (2008) 14 The European Files, (ECtHR, 24 June 2004)

180 Directive 95/46/EC

information: "all information relating to a natural person that is identifiable or identifiable ('object of data'); a person can be identified as a person identified, directly or indirectly, by relating to one or more specific factors related to physical, ideological, mental, economic, cultural or the social identity of that person ‖ This opens to the concept that allows for the adjustment of all types of information, the data evolves over the current types, so it will better protect the right to personal data

Considered to be the leader in human rights protection, privacy is always strictly enforced by European governments The European Convention on human rights is based on the fundamental doctrine of protecting privacy and family life Therefore, the European Court

of Human Rights also receives and handles lawsuits in this area Based on that it has built and clarified the concept and how to apply the right to neglect in data regulations personal This provision requires data controllers to provide data including clear notices of what information must be collected, why it is collected and who has access to that information Although, the first responsibility to protect personal information and data is the responsibility of the personal information data protection unit

The first case was Bodil Lindqvist In 2003, the European Court of Justice ruled that the liability of a company that owns the internet and its registered headquarters in Europe must comply with the European Union's legal provisions in the handling of information personal information used by third parties and uploaded to the internet site they are managing Affirming the right to request removal of their information, or "the right to be forgotten‘ In this case, the problem was handled by the transmission of personal data online on prosecution

of a Swedish church believer because he published a personal web page with fairly mundane information about colleagues in the parish In Spain, there have been fines of up to 300,500 Euros for illegal data transfer, in Germany, the data management agency has also issued a 250,000 Euro fine for a separate violation of rights client's. 181

The legal history to develop concept of right to be forgotten can be mentioned in 2010 Right to be forgotten is made clearer about the concept and mechanism, which is set by the court in the 2014 ruling The European Community, through the Gonzaref lawsuit182 Google Spain, ruling that corporate governance, data network management (Internet data retrieval) is responsible for protecting data and content related to the citizens of the Community when the information That information appears on websites offered by third parties 183 Personal prestige

181 Constance Gustke, Which countries are better at protecting privacy?, BBC, 26/6/2013, truy cập tại: http://www.bbc.com/capital/story/20130625-your-private-data-is-showing (24/10/2017)

182 Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González Case C-131/12 Judgment of the Court (Grand Chamber), 13 May 2014

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62012CJ0131 Vụ

Vụ việc liên quan đến một người đàn ông Tây Ban Nha đã kiện Google, yêu cầu công ty loại bỏ một tin tức của ông ta cách đây 10 năm liên quan tới một số rắc rối tài chính của ông Ông cho rằng Google, với tư cách là người kiểm soát dữ liệu này, phải tuân thủ quy đinhj là gỡ bỏ thông tin của ông ta vì nó không còn cần thiết và đã bị lạc hâụ

183 Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González Case C-131/12 Judgment of the Court (Grand Chamber), 13 May 2014

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62012CJ0131 Vụ

Vụ việc liên quan đến một người đàn ông Tây Ban Nha đã kiện Google, yêu cầu công ty loại bỏ một tin tức của ông ta cách đây 10 năm liên quan tới một số rắc rối tài chính của ông Ông cho rằng Google, với tư cách là người kiểm soát dữ

should also be ensured by removing overdue information from cyberspace The internet network company must also ensure positive measures to ensure there is no sensitivity in the content posted Although the European Court of Human Rights did not give the new term the Right to be forgotten, this is the first time the forgotten right is mentioned In 2014, the ECJ ruled in favor of Spanish citizens (C-131/12) Finally, the highest judicial body in the EU, the Court of Justice, in power rule that: search engine companies are the controllers; DPD applies to companies providing their services in the EU, the user of the information has the right to require search engine companies to delete their reference links to personal information

France's data control agency submits an application to the ECJ (European Court of Justice) for the right to remove obsolete or incorrect information on the internet Currently, France would like to re-use this right, not only on google.fr but also on google.com The French Information Ministry fined Google 100,000 Euros is not in accordance with European regulations on the right to be forgotten. 184 Through the cases, the right to privacy and privacy protection is separated into two different rights The right to protect private life requires not to intervene in the private life and family life of others while the right to protect personal information sets the rules for access and confidentiality of information Separating these two rights will help to handle cases more clearly because there are cases of private life that do not affect the right to protect personal data and vice versa.185

State of Practice of United States of America

For the United States, the right to be forgotten is only the right to voluntarily delete the data that was previously posted 186The so-called forgotten rights have elicited answers and comments from American media 187 The United States has a greater concern about the limitations of data, even if it involves personal protection if the law protects personal data, because the United States promotes freedom of expression and journalism In June 2013, Edward Snowden made the world wobble by publicizing information about the US government's internet and phone surveillance secret program through its National Security Agency (NSA) through a series of articles in the British newspaper The Guardian This is one

of the shocks that have greatly influenced the reputation of the United States because the Internet space is considered a fulcrum for the movements of freedom and democratization around the world which has become a space where the government can arbitrarily intervene and control The then US President then justified: "You cannot guarantee 100% security and

liệu này, phải tuân thủ quy đinhj là gỡ bỏ thông tin của ông ta vì nó không còn cần thiết và đã bị lạc hâụ

184 The Wall Street Journal (24 March 2016)

185 Milda Macenaite, Regulation of children‘s online privacy: current status and regulatory choices, University of Tilburgs, 1/8/2012, truy cập tại: http://arno.uvt.nl/show.cgi?fid=129564, tr 18

186 Leigh Phillips, EU toForce Social Network Sites to Enhance Privacy, GUARDIAN (Mar 16, 2011)

187 European Commission, Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), COM(2012) 11 Consequently, the ‗right to be forgotten‘ e as described here e cannot be relied upon to request erasure from search engines‘ database The issue was the subject of many cases recently launched by the Spanish Data Protection Authority Spanish courts have referred the question to the European Court of Justice See: Suzanne Daley, ‗On Its Own, Europe Backs Web Privacy Fights‘ (NYTimes, 9 August 2011) <http://www nytimes.com/2011/08/10/world/europe/10spain.html>

100% privacy guarantee." 188 Then a series of movements protesting the government's surveillance of people through the Internet took place, demonstrating that privacy is as important

as other basic human rights. 189

The case of Matthew Drudge case illustrates that even active participation by a network company (Internat and ISP) may be considered in the privacy protection mechanism

of privacy and privacy within US law Matthew Drudge is a news columnist on the America Online (AOL) news channel with many readers This journalist writes about stories related to President Clinton-Monica Lewinski News posted on AOL is also transferred to many other channels such as AOL member registration As a news and media channel management unit, AOL can fully control, or remove, misleading or untrue information, or cause humiliating defamation and reputable influence of others When the Drudge posted rumor content, which offers links to other news articles and sources Even some news about Sidney Blumenthal, a member of President Clinton's government, is abusive Blumenthal sued Drudge and AOL for libel By referring to section 230 of the Communications Information Act AOL escaped almost as a defendant, although AOL was responsible for overseeing the editorial content that the network provided The Communications Act was originally designed to limit pornography

to young people on the Internet However, those who advocate for freedom of speech continue to support Internet freedom and are not censored by journalists 190

In the case Ontario v Quon, 2010 sued to the US Supreme Court regarding the level

of privacy applicable to government electronic workplace communications The complaint was Ontario Police Sergeant Jeff Quon, along with other officers ass they were exchanging messages, sued the city authority, that provides pager service providers to the Federal Court that the city government violated the constitutional right under the Fourth Amendment when disciplining them after a text message check discovered many unused work messages 191The Supreme Court Judge expressed a special view to protect privacy In the case of another case, Jones v United States, 192,US Supreme Court Judge Scalia also agreed with the judicial decision that police should not use GPS to search without arrest warrants Other cases involving Facebook pose a problem not only when the user's information is "private" or "open

to the public", but whether Facebook's actions on such information iolate the calculation ensuring privacy and confidentiality of private life. 193

More and more cases of lawsuits, fines that demand platform companies and carriers compensate for their privacy violations Google received 144,000 requests for "right to be forgotten" Facebook also had to stand trial and was asked to pay $ 9.5 million, not including

188 Dịch theo VOVonline từ phát ngôn của Barack Obama: ―I think it's important to recognize that you can't have 100 per cent cent privacy and zero inconvenience,‖ đăng trên RT: Obama on NSA surveillance: Can't have 100% security and

100% privacy, 7/6/2013, truy cập tại https://www.rt.com/usa/obama-surveillance-nsa-monitoring-385/

189 Các phong trào ở Mỹ như ―Restore the Fourth‖, ―Stop watching us‖, ―The day we fight back‖ đều bắt đầu sau sự kiện này

190 See, e.g., Section 230 of the Communications Decency Act: The Most Important Law Protecting Internet Speech, ELECTRONIC FRONTIER FOUNDATION, https://www.eff.org/issues/ cda230