Limiting the 'Right to be Forgotten'

Limiting the 'Right to be Forgotten'
Photo Credit: Corbis/達志影像

What you need to know

According to the Supreme Court of Japan, search results can be ordered deleted only when the value of privacy protection clearly surpasses that of information disclosure.

In ruling on a man’s request that Google Inc. remove internet search results showing his arrest for breaking the child prostitution and pornography law, the Supreme Court of Japan said search results can be ordered deleted only when the value of privacy protection clearly surpasses that of information disclosure. The decision, while turning down the man’s request, is significant in that it for the first time sets down a principle for judging whether certain search results should be allowed to remain on the internet. The ruling should provide an opportunity for both legal professionals and ordinary citizens to start public discussions on the question of the right to know, freedom of expression and protection of privacy on the internet — issues that impact most people in this day and age.

The plaintiff was arrested in November 2011 and was fined ¥500,000 (US$4,450) for a summary conviction of breaking the child prostitution and pornography law. In 2015, the Saitama District Court ordered the deletion of search results showing the arrest by citing the “right to be forgotten” regarding criminal histories — a ruling that received wide attention as the first court ruling citing such a right. Last year, the Tokyo High Court overturned the ruling, saying that such a right is not stipulated under law and that its grounds and consequences are not clear.

The decision in late January by the five-justice Third Petty Bench of the Supreme Court, which upheld the high court ruling, seems to have attached greater importance to freedom of expression and the right to know in the internet age. Without touching on the right to be forgotten, the justices unanimously declared that search results should be deleted only when the benefits deriving from the nondisclosure of facts related to people’s privacy clearly exceed the value of freedom of expression on the part of search engine operators — an opinion that will serve as a principle for the judiciary’s handling of similar cases.

In elaborating, the Supreme Court said that the following points should be carefully weighed in deciding whether search results should be removed: the nature and content of the subjects shown in the search results; the scope of the information dissemination and the degree of damage to privacy; the social status and influence of the person mentioned; the purpose and significance of the reports in question; the social situation; and the necessity to disclose facts about the person such as their name and place of residence.

In weighing the man’s request against this set of criterion, the Supreme Court ruled that child prostitution is a grave matter subject to social condemnation and punishment, and that therefore his arrest for the offense is an issue that is still relevant to the public interest.

The view may exist that allowing search engine results showing the man’s criminal history to remain on the web could hamper his social rehabilitation. The criminal records of individuals clearly require careful handling. Keeping records of petty crimes on the internet for a long period of time may be unnecessary and inappropriate. It is a question that needs to be further discussed from various perspectives.

There are many other court cases in which plaintiffs are calling for the deletion of online search results showing their criminal history. Courts are expected to hand down rulings based on the principle and the six-point criterion set down by the Supreme Court, with particular attention to whether the search results in question have public value and how easy or difficult it is to obtain them. In the case of this plaintiff, merely inputting his name and prefecture in Google’s search engine brought up his criminal history. While court rulings are expected to establish more concrete criteria for the deletion of search results, that should not deter public discussion of the matter.

One significant aspect of the Supreme Court ruling is its decision that since search results are provided in accordance with the policies of individual search engine operators, they represent acts of expression on the part of the search engine operator. The court also said that search engines play an important role in society as infrastructure for the circulation of information. Operators of search engines should realize that since they are exercising the right of expression with their search results, they also bear responsibility for their content.

In a nutshell, the Supreme Court decision highlights the need to strike a reasonable balance among freedom of expression, the right to know and the protection of privacy — and between the public interest and individual rights. Public discussions should be pursued so that a transparent rule can be laid out on how search engines should deal with individuals’ information.

The News Lens has been authorized to republish this editorial. The original can be found here.

Editor: Olivia Yang