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Hong Kongers Should Have the Right To Be Forgotten, Says HK Privacy Commissioner

Image from flickr user Mixy Lorenzo. CC: NC-AT-SA

Image from flickr user Mixy Lorenzo. CC: NC-AT-SA

This article was originally published in Chinese on December 31 and was translated by Cheung Choi Wan into English for Global Voices as part of a content-sharing partnership.

Hong Kong Privacy Commissioner Allan Chiang Yam Wang has begun expressing strong support for the Right To Be Forgotten (RTBF), the controversial policy under which online search engines can be compelled to remove or “forget” information that is deemed irrelevant or outdated.

In a recent post on the blog of the Office of Privacy Commissioner for Personal Data (PCPD), Chiang argued that concerns about the policy infringing on freedom of expression were overblown and appealed to opponents of the policy to be open-minded about its implementation in Hong Kong. He stated that “rapid developments (of this issue) are expected in the short and medium terms.”

Last May, the European Court of Justice (ECJ) ruled that individuals have the right to ask search engines, such as Google, to remove links about them if they find the information “inadequate, irrelevant, no longer relevant or excessive.” Since then, Internet activists in Hong Kong and around the world have spoken out against the policy, arguing that it would effectively become a “right to delete” and that it would threaten and restrict freedom of information.

In recent months, the Privacy Commissioner has spoken about the policy at a variety of high profile events. At a forum held by the Asia Pacific Privacy Authority (APPA) in Vancouver, Canada, Chiang pledged to APPA members that he would:

…continue to closely examine the forthcoming developments. While no concrete action has been contemplated, the possibility of future collective action is not ruled out either.

According to an industry insider, APPA members were not able to reach a consensus about the Right to Be Forgotten at the forum, largely because of the vast political differences between Asia Pacific countries. It would therefore be difficult to implement the policy on the regional level.  

The same source also said Chiang might introduce RTBF into Hong Kong through code of practice or via a local court case.

Speaking at the Hong Kong University Symposium on Privacy on Greater China, Chiang said that he had never proposed enacting laws on RTBF, but did emphasize that transnational network companies, such as Google, should implement consistent privacy policies globally.

From Chiang’s blog post, it could be seen that his stance has toughened over the last six months, and particularly over the last three weeks. Last June, when he wrote about RTBF for the first time, he made it clear that he would follow up with the ruling, “including the possibility of APPA members engaging with Google and other search engine operators to discuss the rights of users in the Asia-Pacific region.”

Despite Chiang's various statements, over the last six months, the Office of the Privacy Commissioner has not made any major moves on the issue.

Meanwhile, a working committee comprising EU data protection authorities released a set of guidelines on the implementation of RTBF at the end of last November. It is stated in the guidelines that search engine companies now only remove links in EU domains which is insufficient. To guarantee the effective and complete protection of the rights of data subjects, it is suggested that link removal be effective in all relevant domains, including .com (see Guidelines, p.9). In light of this new development, EU member states are expected to step up measures to implement RTBF and other governments have more ground to follow suit.

In his most recent blog post, in which he expresses strong support for RTBF, Chiang quotes the EU Guidelines as his basis for supporting RTBF and classifies his opponents’ reactions as being “overblown”. He tries to refute their concerns point by point, but his arguments fail to address the doubts of the public.

Below are the three main arguments that Chiang puts forward and the stand of opponents of RTBF, followed by responses from its opponents:

The implementation of RTBF will only affect the search engines; actual sources of information will not be removed from the Internet.

Opponents: Hong Kong In-Media has pointed out earlier in an open letter jointly signed by a number of organizations to Chiang that search engines are one of the few ways that citizens gain access to information freely. Netizens are used to searching for information using search engines. Links being removed from search results will make it more difficult for people to get information that they are looking for and will block information flow.

RTBF cannot be used for “white washing”. Requests for removal of links will be considered based on 13 criteria set down by EU. According to statistics on Google’s handling of requests for links removal, only 10% of these cases are controversial and only a few cases have been appealed against Google’s decision. Chiang believes that the implementation of RTBF “will not allow public figures to ‘whitewash’ their unflattering personal tidbits. Nor will it allow professionals or public officials who owe a duty to the public to cover up their past misconduct.”

Opponents: Economic Commentator, David Webb, holds out the possibility that some people, who are about to become government officials or public figures, may whitewash themselves by requesting Google to remove links to reports on their drunk driving conviction, infidelity, divorce battle or fake doctorate degree.

RTBF will help to protect the private life of ordinary people. RTBF protects ordinary people by removing search results and reducing harms done to ordinary people whose private life is exposed. If the persons involved are public figures, the search results would not be removed.

Opponents: Organisations that oppose the right have long emphasized that Hong Kong already has laws such as defamation that could balance conflicts between an individual’s rights and freedom of information on the Internet and which could prevent harassment suffered by individuals. Instead of responding to this, Chiang only reiterates that when an ordinary person’s private life is affected, removing search results could definitely reduce the harm suffered by the person involved.

inmediahk.net has produced a three-minute video explaining why Hong Kong should not introduce the RTBF:

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