[ONP 칼럼] Will the Republic of Korea Forget the Right to be Forgotten? …
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The Internet is the most significant technological advancement in generations, dramatically changing the way to collect, communicate, and disseminate information. Such advancement has triggered a new normal where forgetting is the exception and remembering is the norm. Since the internet never forgets, the right to be forgotten has become a worldwide issue. What the right to be forgotten entails has not been adequately defined.[1] The most general idea of which is the right to have certain information erased.[2] Therefore, the right to be forgotten is substantially related to the privacy law based on its basic idea. One of the most elusive problems surrounding privacy law on the Internet is the current algorithm used by search engines to push data to consumers.[3] Since sites such as Google do not follow a strictly chronological format, “old” news can appear at the top of a search depending on popularity, recent searches, and a wealth of other factors.[4] People remain powerless and helpless to the search algorithm in the digital age. The reason is that the search algorithm would show the damaging information from search results without individual’s control or consent that could against the privacy law.
Establishment of the Right to be Forgotten: Google Spain v. AEPD
With the landmark decision of Google Spain v. AEPD, the EU officially recognized that the long standing right of honor – or the right to be forgotten – applies to the Internet.[5] On March 5, 2010, Mario Costeja Gonzalez filed a complaint about articles that were published in La Vaguardia many years ago, which contained announcements for a real estate auction related to attachment proceedings.[6] All information involved in the articles was true and was a result of
[1] Jasmine E. McNealy, The Emerging Conflict between Newsworthiness and the Right to be Forgotten, 39 N. Ky. L. Rev. 119, 121 (2012).
[2] Id.
[3] Demi Marks, The Internet Doesn't Forget: Redefining Privacy through an American Right to be Forgotten, 23 UCLA Ent. L. Rev. 41, 47. See also Inside Search: The Knowledge Graph, Google http://www.google.com/insidesearch/features/search/knowledge.html (last visited April 5, 2020) (explaining how web searches are derived from an autofill feature that helps Google narrow your results into its predetermined results, helping a user to click-through and "use the Knowledge Graph to answer questions you never thought to ask and help you discover more").
[4] See, e.g., Conor Dougherty, Google Adds 'Mobile Friendliness' to Its Search Criteria, N.Y. Times (Apr. 20, 2015), http://www.nytimes.com/2015/04/21/technology/google-adds-mobile-friendliness-to-its-search-criteria.html?_r=0 (last visited October 28, 2021) (discussing how Google's algorithm will shift sites down in search results if they are not mobile friendly).
[5] See generally Google Spain SL v. Agencia Espanola de Proteccion de Datos, 2014 E.C.R.
[6] See generally Google v. AEPD, Case C-131.
Gonzalez not paying social security debts.[1] Gonzalez initially requested the following: (1) that La Vanguardia removes or alters pages to remove this personal data; and (2) that Google removes or conceals this personal data so that it no longer appeared in the search results or in the links to La Vanguardia.[2] Gonzalez contended that this information, though truthful, was no longer relevant because these proceedings had been resolved for a number of years and therefore should be removed.[3] The CJEU held that the search engine, Google, is required to delete the requested search results based on the interpretation of the Data Protection Directive of 1995 that seeks to ensure a high level of protection of the right to privacy.[4] This case marks the origin of the right to be forgotten in relation to the Internet.[5] Not only did this decision officially create a right to be forgotten, it also created extraterritorial impacts on the global nature of the Internet.[6]
Fundamental Values Clash: Freedom of Speech v. Protection of Privacy
Even though EU recognized the “Right to be forgotten,” there is no clear answer whether a foreign court would enforce a right to be forgotten decision made by a CJEU.[7] In particular, the recognition of the right to be forgotten would conflict with other fundamental values such as freedom of expression and freedom of the press. Europe’s right to be forgotten is the result of the higher value placed on personal privacy than on free speech.[8] In contrast, the United States’ hesitancy to adopt the right to be forgotten can be attributed to the desire to preserve free speech over personal privacy when the two values conflict[9] since the freedom of speech still trumps everything in the U.S.
Will the Republic of Korea Forget the Right to be Forgotten?
Historically and presently, the EU and the U.S. hold differing view on the importance of
[1] Id.
[2] Id.
[3] Id.
[4] Id.
[5] May Crockett, The Internet (Never) Forgets, 19 SMU Sci. & Tech. L. Rev. 151,160 (2016).
[6] Michael L. Rustad & Sanna Kulevska, Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow, 28 Harv. J. Law & Tec. 349, 376 (2015).
[7] Leslie E. Minora, U.S. COURTS SHOULD NOT LET EUROPE'S "RIGHT TO BE FORGOTTEN" FORCE THE WORLD TO FORGET, 89 Temp. L. Rev. 609, 619 (2017).
[8] Jessica Ronay, ADULTS POST THE DARNDEST THINGS: [CTRL + SHIFT] FREEDOM OF SPEECH TO [ESC] OUR PAST, 46 U. Tol. L. Rev. 73, 75 (2014).
[9] Id.
personal privacy.[1] What is the status of point of view as to personal privacy in the Republic of Korea? The current law in the Republic of Korea stipulates the right to request that the data controller deletes personal information and prevent the spread of personal information.[2] In this regard, there are regulations on the right to request deletion under the Information and Communications Network Act and the correction and deletion of personal information under the Personal Information Protection Act.[3] It seems the right to be forgotten established in E.U is already expressed in the Republic of Korea through the provisions of the Personal Information Protection Act.[4] However, the concept and scope of personal information and exception to deletion and correction requests are different between the Republic of Korea and the E.U.[5] Even if individuals request to delete information related to them through the ‘right to be forgotten’, freedom of expression would prioritize the right to be forgotten when there is a need to preserve the public interest.[6] But, it remains questionable whether such public interest lasts forever and it would be challenging to clarify in the legal norms.[7] Will the Republic of Korea forget the right to be forgotten?
[1] May Crockett, The Internet (Never) Forgets, 19 SMU Sci. & Tech. L. Rev. 151,168 (2016).
[2] 김혜진, 강달천, “잊혀질 권리의 효율적인 발전방향 연구,” 한국인터넷진흥원, 2013, 18면
[3] 김혜진 외, 전게연구보고서, 18면.
[4] 김혜진 외, 전게연구보고서, 19면.
[5] 김혜진 외, 전게연구보고서, 19면.
[6] 김혜진 외, 전게연구보고서, 15면.
[7] 김혜진 외, 전게연구보고서, 15면.
Establishment of the Right to be Forgotten: Google Spain v. AEPD
With the landmark decision of Google Spain v. AEPD, the EU officially recognized that the long standing right of honor – or the right to be forgotten – applies to the Internet.[5] On March 5, 2010, Mario Costeja Gonzalez filed a complaint about articles that were published in La Vaguardia many years ago, which contained announcements for a real estate auction related to attachment proceedings.[6] All information involved in the articles was true and was a result of
[1] Jasmine E. McNealy, The Emerging Conflict between Newsworthiness and the Right to be Forgotten, 39 N. Ky. L. Rev. 119, 121 (2012).
[2] Id.
[3] Demi Marks, The Internet Doesn't Forget: Redefining Privacy through an American Right to be Forgotten, 23 UCLA Ent. L. Rev. 41, 47. See also Inside Search: The Knowledge Graph, Google http://www.google.com/insidesearch/features/search/knowledge.html (last visited April 5, 2020) (explaining how web searches are derived from an autofill feature that helps Google narrow your results into its predetermined results, helping a user to click-through and "use the Knowledge Graph to answer questions you never thought to ask and help you discover more").
[4] See, e.g., Conor Dougherty, Google Adds 'Mobile Friendliness' to Its Search Criteria, N.Y. Times (Apr. 20, 2015), http://www.nytimes.com/2015/04/21/technology/google-adds-mobile-friendliness-to-its-search-criteria.html?_r=0 (last visited October 28, 2021) (discussing how Google's algorithm will shift sites down in search results if they are not mobile friendly).
[5] See generally Google Spain SL v. Agencia Espanola de Proteccion de Datos, 2014 E.C.R.
[6] See generally Google v. AEPD, Case C-131.
Gonzalez not paying social security debts.[1] Gonzalez initially requested the following: (1) that La Vanguardia removes or alters pages to remove this personal data; and (2) that Google removes or conceals this personal data so that it no longer appeared in the search results or in the links to La Vanguardia.[2] Gonzalez contended that this information, though truthful, was no longer relevant because these proceedings had been resolved for a number of years and therefore should be removed.[3] The CJEU held that the search engine, Google, is required to delete the requested search results based on the interpretation of the Data Protection Directive of 1995 that seeks to ensure a high level of protection of the right to privacy.[4] This case marks the origin of the right to be forgotten in relation to the Internet.[5] Not only did this decision officially create a right to be forgotten, it also created extraterritorial impacts on the global nature of the Internet.[6]
Fundamental Values Clash: Freedom of Speech v. Protection of Privacy
Even though EU recognized the “Right to be forgotten,” there is no clear answer whether a foreign court would enforce a right to be forgotten decision made by a CJEU.[7] In particular, the recognition of the right to be forgotten would conflict with other fundamental values such as freedom of expression and freedom of the press. Europe’s right to be forgotten is the result of the higher value placed on personal privacy than on free speech.[8] In contrast, the United States’ hesitancy to adopt the right to be forgotten can be attributed to the desire to preserve free speech over personal privacy when the two values conflict[9] since the freedom of speech still trumps everything in the U.S.
Will the Republic of Korea Forget the Right to be Forgotten?
Historically and presently, the EU and the U.S. hold differing view on the importance of
[1] Id.
[2] Id.
[3] Id.
[4] Id.
[5] May Crockett, The Internet (Never) Forgets, 19 SMU Sci. & Tech. L. Rev. 151,160 (2016).
[6] Michael L. Rustad & Sanna Kulevska, Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow, 28 Harv. J. Law & Tec. 349, 376 (2015).
[7] Leslie E. Minora, U.S. COURTS SHOULD NOT LET EUROPE'S "RIGHT TO BE FORGOTTEN" FORCE THE WORLD TO FORGET, 89 Temp. L. Rev. 609, 619 (2017).
[8] Jessica Ronay, ADULTS POST THE DARNDEST THINGS: [CTRL + SHIFT] FREEDOM OF SPEECH TO [ESC] OUR PAST, 46 U. Tol. L. Rev. 73, 75 (2014).
[9] Id.
personal privacy.[1] What is the status of point of view as to personal privacy in the Republic of Korea? The current law in the Republic of Korea stipulates the right to request that the data controller deletes personal information and prevent the spread of personal information.[2] In this regard, there are regulations on the right to request deletion under the Information and Communications Network Act and the correction and deletion of personal information under the Personal Information Protection Act.[3] It seems the right to be forgotten established in E.U is already expressed in the Republic of Korea through the provisions of the Personal Information Protection Act.[4] However, the concept and scope of personal information and exception to deletion and correction requests are different between the Republic of Korea and the E.U.[5] Even if individuals request to delete information related to them through the ‘right to be forgotten’, freedom of expression would prioritize the right to be forgotten when there is a need to preserve the public interest.[6] But, it remains questionable whether such public interest lasts forever and it would be challenging to clarify in the legal norms.[7] Will the Republic of Korea forget the right to be forgotten?
[1] May Crockett, The Internet (Never) Forgets, 19 SMU Sci. & Tech. L. Rev. 151,168 (2016).
[2] 김혜진, 강달천, “잊혀질 권리의 효율적인 발전방향 연구,” 한국인터넷진흥원, 2013, 18면
[3] 김혜진 외, 전게연구보고서, 18면.
[4] 김혜진 외, 전게연구보고서, 19면.
[5] 김혜진 외, 전게연구보고서, 19면.
[6] 김혜진 외, 전게연구보고서, 15면.
[7] 김혜진 외, 전게연구보고서, 15면.
