History isn’t personal preference

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History isn’t personal preference

“Right to be forgotten” is an attractive term. It’s the common desire to want to erase the past, packaged in a right. But it’s not easy to legalize such an entitlement. If you have a legal right to be forgotten, it may infringe on other people’s right to remember and ultimately freedom of expression.

When you take other people’s rights into consideration, the right to be forgotten isn’t as attractive as it sounds. Saenuri Party representative Lee No-geun recently proposed a bill on this right. The legislation states that you may request the removal of your own online writings. However, these requests are already accommodated by major portal sites without such a law.

In order for the right to be forgotten to be meaningful, it should be applied to more complicated cases. The first is the copying and reposting of someone else’s writing or pictures. The second is the posting of another person’s personal information.

If the right to be forgotten that applies to the first case is legislated, portal sites would need to obtain consent from all those who posted the information concerned before anything is removed. It’s questionable if that’s possible either technically or economically. Removing information without the consent of the poster might result in their right to freedom of expression being infringed upon, though that may ultimately depend on the content and nature of the post. It’s unreasonable to let the portal sites make the judgment as they’re likely to excessively remove information in order to avoid liability. In the end, freedom of speech would be drastically affected.

The second case involves more serious human rights. The right to demand that other people not speak about you cannot be granted universally. And facts about things that have already happened are parts of history, and history cannot be determined based on personal preference.

Introducing the right to be forgotten is not a simple legal matter. It’s a matter of weighing the right to dignity that the right to be forgotten intends to protect against the freedom of expression that may be violated. Ultimately, it all depends on which value our society prioritizes.

The United States and Europe have obvious differences in their perspectives. European countries tend to put a higher value on personal rights and are willing to compromise freedom of expression. But the U.S. puts a stronger emphasis on freedom of expression and puts up with some damage to personal rights as a result of social activities.

Which value do we prioritize more? Regrettably, we often introduce laws without a serious examination of the fundamentals. That’s happening here. Some advocate introducing the right to be forgotten without realizing that a right like the one currently in the process of legislation in the European Union is already in place in Korea. The law on personal information protection was legislated in March 2011 and Article 36 acknowledges the right to request the removal of personal information. The law on information and communication revised in January 2007 also recognizes the right to request removal when the information open to the public violates the rights of others, such as in cases of privacy infringement or defamation (Article 44, Clause 2). The right to be forgotten was quietly included in the law on personal information protection for the first time in the world, but it is questionable
whether lawmakers actually understood the significance of it.

Moon Jae-wan

The author is a professor at Hankook University of Foreign Studies Law School.

Translation by the Korea JoongAng Daily staff.

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