Should Australians have the ‘right to be forgotten’ online?

17th Jun 2021

In 2019, Germany’s highest court ruled that a plaintiff convicted of murder in 1982 has the ‘right to be forgotten’ and his name could be removed from online search results.

The plaintiff argued that, although he had served 20 years in prison for murdering two people, he was still paying for his crime. When anyone performed an internet search on his name, there were links to his crime.

As a result, every time he tried to develop a new relationship or find a job his crime would appear in an internet search and he would be rebuffed. He argued that the internet interfered with his right to a normal life.

Does the public deserve to learn about a person’s past crimes on the internet?

In 2009, the plaintiff failed to compel the Court to remove the reports of his crime from the internet. The Court held that the public had a right to know that he had been found guilty of the murders.

However, in 2014, the European Union Court of Justice held that EU citizens have the ‘right to be forgotten’, and the right to request that data about them be deleted from search engines within the EU.

Following this, in 2019, the plaintiff appealed the decision in Germany’s constitutional court, which held that under EU law he did indeed have the right to be forgotten.

Complexities around ‘right to be forgotten’ laws

There is no equivalent ‘right to be forgotten’ law in Australia. Due to this being such a vexed legal question, any attempt to draw up such legislation would likely result in a huge quandary.

The question is whether politicians, lawyers, corporations, criminals or anyone else in Australia should have the right to have their past crimes and misdemeanours wiped from the public record on the internet.

We should, of course, have a right to privacy, and victims of crimes such as revenge porn should be able to have such material removed from public view.

But does that extend to deleting history? Does it extend to wiping embarrassing video footage of us behaving badly because it could damage our job prospects? What about Tweets that we later regret?

What information should be removed from the internet?

The so-called ‘right to be forgotten’ puts privacy and free speech on a collision course. We should be able to search for a person’s name online and learn about their past without this information being censored.

Surely, if a woman is going on a first date, she should have the right to know if the other person has served time in jail for murder or rape.

We may not like a story about us that appeared in a newspaper or on TV, but should the law decide how embarrassing an account has to be before we can get it deleted from the internet?

Avenues already exist for getting incorrect or defamatory articles removed from media websites. However, this can be very difficult, especially if the media organisation argues that its report is correct.

While people are winning defamation actions for online information pertaining to them, it’s a huge step to allow the deletion of historical material that someone simply wants forgotten.

This is an edited version of an article first published at Stacks Law.

Michael McHugh is a lawyer in the Stacks office in Tamworth. He specialises in property law, mortgages and securities, mergers and acquisitions and commercial litigation. He has worked in the areas of agribusiness and finance for major regional lenders.

As an Accredited Specialist in Property Law, Michael has experience handling many successful property transactions, including property development, conveyancing and matters related to wills and estates. He has conducted many Supreme Court civil litigation matters, as well as those involving business law and commercial litigation.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: online international law