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Expert says 'right to be forgotten' could cause problems for publishers

A system where newspaper stories can be 'locked away' but not entirely deleted from archives under new data protection law proposals could be used to ensure a balance is struck between privacy and free speech rights, a media law expert has said.10 Nov 2011

Earlier this week EU Justice Commissioner Viviane Reding announced that a new EU Data Protection Directive would generally give consumers "the right to delete their data at any time, especially the data they post on the internet themselves". The European Commission has said detailed proposals for the new laws will be formally announced before the end of January.

Reding later said that publishers' had the right to store personal data about individuals within news stories, regardless of the individual's 'right to be forgotten', if those stories were in the "public interest".

Media law expert Kim Walker of Pinsent Masons, the law firm behind Out-Law.com, said that the 'right to be forgotten' would have a major effect in relation to news archives. He said that there would be great difficulty in determining what stories are in the public interest and what are not, and that the importance of stories may change over time.

“What is in the public interest has to be judged at the relevant time,” Walker said. “There may be examples of stories that appear about individuals that do not need to be kept accessible in the public interest around the time they are published, but which 10 years later, perhaps because the individual has in the meantime become a public figure, should be publishable in the public interest."

"The right of individuals to order media organisations to delete reference to them in stories held in their archive should therefore be carefully considered," said Walker. "It may be that reports could be effectively ‘locked away’ under a right to be forgotten, but with the option of being restored to searchable archives if they later become public interest stories."

“In my view the right to be forgotten is something that data subjects should have available, but it is going to mean a lot of difficult decisions will have to be made by lawyers, particularly in-house lawyers at media organisations, in determining whether stories should be deleted following a request or whether they should remain in the archives," he said.

"Distinguishing between what is in the public interest and what is simply of interest to the public is not always easy and the inherent conflict between the right of free speech and the right to privacy will remain a difficult one to reconcile under this proposed regime. Of course that’s not to say that just because it is difficult means it should not be implemented in the new data protection regime,” Walker said.

Introducing a right for individuals to force organisations to delete personal data they store about them will not impinge on the media's right to archive stories in the public interest, Reding told newspaper industry representatives on Tuesday.

In a speech at the European Newspaper Publishers Association (ENPA) Reding said that giving individuals a general right to force organisations to delete personal data they store about them would not prevent publishers archiving stories in the public interest.

"I will ensure that when an individual no longer wants his data to be processed or when there are no legitimate grounds to retain the data, it will be deleted," Reding said during her speech.

"I know that there are many questions in your circles concerning this issue. Let me be clear: the rules are about empowering private individuals in relation to data-processors, not about erasing past events, rewriting history or restricting freedom of the press. We will ensure that the implementation of the right to be forgotten within European data protection law will not affect the job of journalists to report and store stories of public interest. So, clearly, the European Commission will combine freedom of the press, freedom of expression and freedom of information," she said.

Reding said that introducing a 'right to be forgotten' builds on existing data protection principles "in respect of which personal data should be processed only when strictly necessary".

Under current EU data protection laws personal data must be "processed fairly and lawfully" and be collected for "specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes".

Publishers and individuals have previously contested issues of privacy and free speech in major legal battles. Some celebrities have won court injunctions banning publishers from naming them in stories they print – successfully arguing that to do so would be an invasion of their rights to a private life, as guaranteed by the European Convention on Human Rights (Convention).

However, earlier this year publishers scored a major victory in a European Court of Human Rights (ECHR) ruling involving former motor racing boss Max Mosley. That Court rejected Mosley's argument that publishers should have to notify story subjects in advance of printing articles about them. Freedom of expression is also a right guaranteed under the Convention. The ECHR said that introducing a prior notification requirement on publishers would have a "chilling effect" on that right because it would give the subjects of stories the chance to obtain a court order preventing publication.

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