Privacy and leaving your past behind

Abstract

Several decades ago leaving one’s past behind used to be a relatively easy phenomenon. An individual could move town, country or even continent to leave their past behind and build a new life. In the digital age in which we now live, it is increasingly challenging to achieve separation from one’s past. Using the right to a private life is one way in which it is possible to leave one’s past behind. The term ‘right to be forgotten’ has garnered much public attention since the Google Spain case before the Court of Justice for the European Union in 2014. The result that a person should be able to request from Google that the search results list displayed could be modified (after using an individual’s name as a search term) has alarmed those who believe in free speech and particularly those who believe that the internet is the last bastion of truly free speech.

This thesis sets out to show that the concept of the right to be forgotten is not a new concept per se, but is rather one which has gained traction with the development of how individuals use the internet. This thesis considers that there should be some form of being able to ‘forget’ and maintain a private life available to individuals, but that there needs to be clearer guidance on the way to achieve this. The internet cannot be controlled solely by national legislation. There needs to be a way to manage individuals’ expectations on the internet at an international level.

Understanding how individuals used to leave their past behind is the starting point for the thesis and helps to establish suitable methods to advise individuals and companies about how to manage a situation where an individual seeks to leave part of their past behind. Terms such as newsworthiness, public interest, public figure are addressed. A literature review identifies the situations which have arisen in the past before considering the immediate situation including Google Spain and the literature which has tumbled out since the judgment.

This thesis then seeks to establish parameters which would guide individuals, companies and governments on the concept of leaving one’s past behind from a privacy perspective where information which was published some time ago ceases to be relevant about that individual. The aim is to enable the individual to move on with their life without continuously being haunted by their previous actions.

This thesis will then consider two groups as examples where leaving your past behind has the most impact on individuals. The first group which will be considered is the situation of rehabilitating offenders. These individuals have certain rights protected by expungement or clean slate legislation in several jurisdictions. This type of legislation is, however, now less useful than when initially drafted as the advent of the internet means that information such as court listings and court reports in newspapers remain easily accessible long after the case would have been before the court itself. The second example is children, minors, who might not wish to have their adult life blighted by something which might have happened whilst they were a minor.