5.03. Formulación del proceso de Aplicación de la guía
5.03.02. Formulación del Proceso de aplicación de la Propuesta
The GDPR defines the RTBF as the right to have personal data
erased “without undue delay” if they are “no longer necessary in
relation to the purposes for which they were collected or otherwise
processed.”
292This is an intelligible inquiry with respect to large
organizations that collect and process data for managerial reasons. But
it is not an intelligible inquiry with respect to much communication of
personal data within the public sphere. We might ask, for example,
what purposes a blogger serves when publishing on the Internet an
account of contemporary events that contains personal data. If the
purpose is to instruct the mind of the public, when is her processing of
those data no longer “necessary”?
It is even less clear what specific purposes are independently
served by Google. We are now not focused on the data that Google
gathers on its customers to effect “massive online capturing of
everydayness,”
293which Harvard Business School Professor Shoshana
Zuboff has labelled “surveillance capitalism.”
294Such data should
indeed be governed by the instrumental logic of the Directive, because
it is almost certainly captured and processed for utilitarian purposes.
We are speaking instead of information that Google communicates to
the public sphere in the form of links that enable persons to negotiate
the worldwide web. When are such Google links “inadequate,
irrelevant or no longer relevant, or excessive”
295for the purposes for
which they are created?
I have often heard it said that the Internet “never forgets.”
296If
292. GDPR, supra note 17, art. 17; cf. Google Spain, supra note 12, para. 94 (“[I]nformation appears . . . to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, the information . . . must be erased.”).293. Ionna D. Constantiou & Jannis Kallinnikos, New Games, New Rules: Big Data and the
Changing Context of Strategy,30 J.INFO.TECH.44, 55 (2015).
294. Shoshana Zuboff, Big Other: Surveillance Capitalism and the Prospects of an Information Civilization,30 J.INFO.TECH.75, 75 (2015).
295. Google Spain, supra note 12, para. 94.
296. Nick Miller, The Internet Never Forgets,SIDNEY MORNING HERALD (Mar. 23, 2013), http://www.smh.com.au/technology/the-internet-never-forgets-20130322-2gle7.html [https:// perma.cc/F6YA-EMUF]; Jeffrey Rosen, The Web Means the End of Forgetting, N.Y.TIMES MAGAZINE (July 21, 2010), http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html?
newspapers are “cheap, quotidi[a]n, throw-away” objects,
297largely
written to be read and discarded, Google is designed to create usable
access to whatever texts are available for circulation in the public
sphere of the Internet.
298The digital world of the web is “unforgiving”
and comprehensive.
299In effect, Google creates a moving archive that
corresponds to the Internet itself.
300The purpose of such an archive is
in some respects comparable to the purpose of library archives, which
are dedicated to providing “the public the means of acquiring
information, knowledge, education, aesthetic experience, and
entertainment.”
301Like Google, libraries “organize” available texts—“factual,
imaginative, scientific, and humanistic”—through “an effective
network” that permits “access . . . from a myriad of directions.”
302Libraries seek to provide information adequate to satisfy the “curiosity
and aspiration and appreciation that characterize[] the alert, sensitive,
adventurous human being.”
303Libraries strive “to provide all people
with access to the information they want.”
304As libraries become
pagewanted=all [https://perma.cc/5N6Y-PPED]; David Siesage, The Internet Never Forgets, So
Be Careful What You Put on It,INDEPENDENT (Aug. 28, 2013), http://www.independent.co.uk/
student/istudents/the-internet-never-forgets-so-be-careful-what-you-put-on-it-8787706.html [https://perma.cc/4QSR-HX9K].
297. SCHUDSON,supra note 154, at 33.
298. See Emily B. Laidlaw, Private Power, Public Interest: An Examination of Search Engine Accountability,17 INT’L J.L.&INFO.TECH.113,116(2009)(“[S]earch engines are websites that help users find information on other websites.”).
299. MAYER-SCHÖNBERGER, supra note 46, at 126 (noting that digital memory is “easy to use and comprehensive” with “too strict and unforgiving a link to our past”).
300. In Case of Times Newspapers Ltd. (Nos. 1 and 2) v. The United Kingdom, 2009-1 Eur. Ct. H.R. 377, the ECtHR acknowledged
the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free. The Court therefore considers that, while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported.
Id. at 392–93, para. 45.
301. REDMOND KATHLEEN MOLZ & PHYLLIS DAIN, CIVIC SPACE/CYBERSPACE: THE AMERICAN PUBLIC LIBRARY IN THE INFORMATION AGE 2 (1999); see TOM GLYNN,READING PUBLICS:NEW YORK CITY’S PUBLIC LIBRARIES, 1754−1911, at 3 (2015); W.J.MURISON,THE PUBLIC LIBRARY:ITS ORIGINS,PURPOSE, AND SIGNIFICANCE 77 (3d ed. 1988).
302. ALA’s Pub. Library Ass’n Goals, Guidelines & Standards Comm., A Mission Statement
for Public Libraries: Guidelines for Public Library Service: Part 1,8 AM.LIBR. 615, 619 (1977).
303. Lowell A. Martin, The Public Library: Middle-age Crisis or Old Age, 108LIBR.J.17,22 (1983).
digital
305and aim for open access, the priority of physical collections
diminishes, and libraries become more and more like Google itself—
institutions dedicated to organizing and presenting online texts.
306All agree that library archives serve to sustain “democratic”
culture
307by “recapturing and extending democratic processes and
potential” and linking persons to “the public sphere.”
308The “allure of
the archives,” writes French historian Arlette Farge, is the anticipation
of a “roaming voyage through the words of others,” so that we might
“enter into an unending conversation about humanity” and about “the
debates that surround us.”
309When might it be said that the data
processing required to produce archives for such purposes is no longer
World,25 INT’L FED’N LIBR.ASS’N J.223, 225 (1999); see MOLZ & DAIN, supra note 301, at 43; Stephen A. Roberts, World Librarianship and the New Europe: An Exploratory Essay, 4 INT’L J. INFO.&LIBR.RES.19, 23 (1992).305. LEONARDO CANDELA, DONATELLA CASTELLI & PASQUALE PAGANO, History,
Evolution and Impact of Digital Libraries, in E-PUBLISHING AND DIGITAL LIBRARIES:LEGAL
AND ORGANIZATIONAL ISSUES 1,1(Ioannis Iglezakis, Tatiana-Eleni Synodinou & Sarantos Kapidakis eds., 2011).
306. See, e.g.,WILLIAM Y.ARMS,DIGITAL LIBRARIES,at ix(2000); William Y. Arms, The Web as an Open Access Digital Library (Oct. 21. 2000), www.cs.cornell.edu/wya/papers/Kyoto- 2000.doc [https://perma.cc/VVM4-VFSR]. “Public libraries are not only providing Internet and other electronic resources they are joining the Internet themselves.” MOLZ & DAIN, supra note 301, at 187; see PAUL GILSTER,DIGITAL LITERACY 155−228 (1997). These developments, of course, need to be placed in the context of the online appearance of digital collections of texts and news like, for example, the ProQuest Historical Newspapers database. See Paul M. Schwartz,
From Victorian Secrets to Cyberspace Shaming, 76 U.CHI.L.REV.1407, 1414−18 (2009).
307. The 1979 White House Conference on Library and Information Services affirmed that “publicly supported libraries are institutions of education for democratic living.” RESOLUTIONS OF THE WHITE HOUSE CONFERENCE ON LIBRARY AND INFORMATION SERVICES 1979, at46 (1980); see ALFRED HESSEL,AHISTORY OF LIBRARIES 99−107 (Reuben Peiss trans., 1955); Arthur W. Hafner & Jennifer Sterling-Folker, Democratic Ideals and the American Public
Library, in DEMOCRACY AND THE PUBLIC LIBRARY:ESSAYS ON FUNDAMENTAL ISSUES 9,19
(Arthur W. Hafner ed., 1993); Frederick Stielow, Reconsidering Arsenals of a Democratic Culture, in LIBRARIES &DEMOCRACY:THE CORNERSTONES OF LIBERTY 3,4−5(Nancy Kranich ed., 2001);Grace O. Kelley, The Democratic Function of Public Libraries,4 LIB.Q.1, 1 (1934). The White House Conference resolved that because “information in a free society is a basic right of any individual, essential for all persons . . . and all economic and social levels,” that “all persons should have free access, without charge or fee to the individual, to information in public and publicly supported libraries.” RESOLUTIONS OF THE WHITE HOUSE CONFERENCE ON LIBRARY AND INFORMATION SERVICES 1979,at46 (1980).
308. JOHN E.BUSCHMAN,DISMANTLING THE PUBLIC SPHERE:SITUATING AND SUSTAINING LIBRARIANSHIP IN THE AGE OF THE NEW PUBLIC PHILOSOPHY 37(2003); see id. at 46−48, 175;
see also JAMES H.BILLINGTON, The Modern Library and Global Democracy, in THE MEANING
OF THE LIBRARY:ACULTURAL HISTORY 254,254 (Alice Crawford ed., 2015) (“[L]ibraries . . . have a key role to play in building and sustaining participatory and accountable democratic societies.”).
309. ARLETTE FARGE,THE ALLURE OF THE ARCHIVES 123−24 (Thomas Scott-Railton trans., 2013).
necessary?
310There is no answer to this question, which is no doubt why the
GDPR explicitly provides that the RTBF should not apply “for
archiving purposes in the public interest, scientific or historical
research purposes” insofar as the RTBF “is likely to render impossible
or seriously impair the achievement of the objectives of that
processing.”
311It is striking that the GDPR does not include library
archives in the derogation for “the right to freedom of expression and
information, including processing for journalistic purposes and the
purposes of academic, artistic or literary expression.”
312This is
probably because it conceptualizes libraries as containing data to which
the public is given access, rather than as institutions that actively
communicate data to the public.
My intuition is that the CJEU will not interpret the GDPR to hold
that Google is an archive assembled in the “public interest” or for
“historical research purposes.” Google’s popularity, its
commercialization, its hunger for the personal data of its users,
313all
combine to make it seem far removed from the demure passivity
associated with library archives. If libraries are conceptualized as
making data available for public access, Google is much more easily
imagined as deliberately communicating public information to the
public. Although the Internet is rapidly fraying this distinction, it
nevertheless underlies the GDPR’s differentiation between
derogations for expressive purposes and derogations for archives in the
public interest.
The GDPR exempts historical archives because of deep social
needs for common information. As one of the GDPR’s most passionate
advocates remarked, data privacy
is of course not an absolute right. There are cases where there is a
legitimate and legally justified interest to keep data in a data base.
The archives of a newspaper are a good example. It is clear that the
right to be forgotten cannot amount to a right of the total erasure of
310. For a fascinating if unsuccessful effort to wrestle with this question, seeIVAN SZEKELY,
The Right To Be Forgotten and the New Archival Paradigm, in THE ETHICS OF MEMORY IN A
DIGITAL AGE:INTERROGATING THE RIGHT TO BE FORGOTTEN 28,28−49 (Alessia Ghezzi,
Ăngela Guimarães Pereira & Lucia Vesnić-Alujević eds., 2014). Cf.supra note 99. 311. GDPR, supra note 17, art. 17(3).
312. Id. art. 85(1).
history.
314History is the common property of the public. No individual can be said
to “control”
315the personal data of history without unraveling the
fabric of history itself. I cannot prevent you from narrating your
account of historical events, even if they include information “relating
to”
316me. Nor can you prevent me from narrating my account of
historical events, even if they include information “relating to” you.
History is constructed from the interplay of such perspectives,
including from the personal data contained within them.
317History
requires that personal data become, as it were, common property,
rather than under the “control” of particular data subjects.
318Democratic communication in the public sphere requires this
same structure of common information. The public sphere is a field of
intersubjective communicative action; it would collapse if individuals
could at will withdraw from circulation information “relating to”
themselves because they have the right to “control” such personal
data.
319The public sphere in a democracy also serves the political
purpose of self-governance. Those who control the circulation of
314. See Viviane Reding, The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern Data Protection Rules in the Digital Age, Address at the Innovation Conference Digital, Life, Design(Jan. 22, 2012) (emphasis omitted).
315. GDPR, supra note 17, recital 7.
316. Directive, supra note 5, art. 2(a); GDPR, supra note 17, art. 4(1).
317. By contrast to Google Spain,the CJEU has been quite sensitive to the need for the circulation of shared information to preserve the “historical memory” of the actions of joint stock and limited liabilities companies as required by the First Council Directive 68/151/EEC of 9 March 1968, which emphasizes the need to co-ordinate “national provisions concerning disclosure” of the obligations of such companies “for the purpose of protecting the interests of third parties.” Case C-398/15, Camera di Commercio, Industria, Artigianato e Agricoltura di Leece v. Manni, para. 4 (Mar. 9, 2017), http://curia.europa.eu/juris/document/document.jsf; jsessionid=9ea7d0f130d5da8068b3690a4e3f94169d692c409ec6.e34KaxiLc3eQc40LaxqMbN4PaN iSe0?text=&docid=188750&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid =1193773 [https://perma.cc/QRF8-ZW9L]; Directive 68/151/EEC of the First Council of the European Communities of 9 March 1968, 1968 O.J. (L65) 8. Although the disclosures required by Directive 68/151 were inconsistent with the protections of personal data required by Directive 95/46, the CJEU nevertheless found the disclosures justified by the importance of reducing information costs in the interests of promoting marketplace efficiency and reliability.
318. Which is no doubt why courts have held that “it is not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of” past publications. Case of Węgrzynowski & Smolczewski v. Poland, App. No. 33846/07, para. 65 (Eur. Ct. H.R. July 16, 2013), http://hudoc.echr.coe.int/eng?i=001-122365 [https://perma.cc/A7CN- 52L7].
319. See, e.g.,Dresbach v. Doubleday & Co., 518 F. Supp. 1285, 1289−91 (D.D.C. 1981); Bonome v. Kaysen, No. 032767, 2004 WL 119731, at *3, *4 (Mass. Mar. 3, 2004); Anonsen v. Donahue, 857 S.W.2d 700, 705−06 (Tex. App. 1993).
personal data in the public sphere control the creation of public
opinion. Because personal data become relevant to public opinion as
they become responsive to public curiosity, and because public
curiosity is a variable and unpredictable phenomenon, it is impossible
to “specify” in advance which personal data will become relevant to
the formation of public opinion.
There is thus a fundamental tension between news, which orients
the public by responding to public curiosity, and fair information
practices, which demand previously articulated, explicit and specified
purposes as a precondition for processing personal data. That is why
both the Directive and the GDPR acknowledge derogations for
journalistic activity, insofar as is necessary to accommodate freedom of
expression, without specifying the contents of what constitutes such
activity.
320320. The profound tension between fair information practices and news is very much on display in the Guidelines on the Implementation of Google Spainpublished by the Article 29 Data Protection Working Party (“Working Party”). ARTICLE 29DATA PROT.WORKING PARTY, supra note 128, at paras. 4, 7. The Working Party was created pursuant to Article 29 of the Directive, which requires the creation of an advisory working party composed of representatives of each Member State to advise the European Commission on the implementation of the Directive. See Directive, supra note 5, art. 29. The Guidelines justify the distinction between the Google link and the original La Vanguardia website on the ground that:
[t]he processing carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet—information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty—and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous.
ARTICLE 29DATA PROT.WORKING PARTY, supra note 128, para. 4; see id. para. 7 (“The respective legal grounds of original publishers and search engines are different. . . . Even when (continued) publication by the original publishers is lawful, the universal diffusion and accessibility of that information by objects of a search engine, together with other data related to the same individual, can be unlawful . . . .”).
The Working Party correctly observes that using Internet search engines to comb the Internet for information based upon the names of data subjects instantly produces a vast amount of disparate personal data that is assembled in a single convenient form and costlessly distributed throughout the public sphere. From the perspective of a data subject who wishes to control her personal data, therefore, search engine results constitute a massive loss of control.
The reasoning of the Working Party nevertheless stands in stark contrast to the ultimate rationale of Google Spain. Google Spain dealt with the delisting of only a single link, which meant that it could implicitly incorporate the norms of Article 7 to determine whether the dissemination of information about Costeja’s attachment proceedings was more “harmful” than was warranted