Does everything remain on the Internet and can it be cleaned up (in the context of the right to be forgotten in Russian practice)

The law on the right to be forgotten, according to which any citizen has the right to demand to hide false or outdated information about himself in search results, has been in effect in Russia since 2016. But is it really realistic to clean up all Internet traces, and is it time to change the practice of applying the law?

Each of us, registering on certain sites, social networks or aggregators, making purchases in online stores, leaves hundreds and thousands of bytes of our personal data on the worldwide network every day – name, phone number, photographs, passport data, TIN numbers, SNILS and etc. And in the end, you can create a whole dossier about a person, and without his desire. There is a situation, the danger of which the President of the Russian Federation Vladimir Putin spoke about the other day, speaking with an online appeal at the forum “Davos Agenda 2021”: “Modern technological and, above all, digital giants have begun to play an increasingly significant role in the life of society … in some areas they are de facto competing with states. Their audience is estimated at billions of users who spend a significant part of their lives within these ecosystems … the society has a question: how much does such a monopoly correspond to the public interest? Where is the line between successful global business, in-demand services and services, the consolidation of big data and attempts to rudely, at their own discretion, manage society, substitute for legitimate democratic institutions, in fact, usurp or restrict a person’s natural right to decide for himself how to live, what to choose, what position to express freely? “

As rightly noted by the candidate of legal sciences E.M. Podrabinok in his article “Features of the exercise of the right to oblivion in the era of digitalization of society”“The emergence and exercise of the right to be forgotten became possible only with the emergence and spread of the Internet, since obtaining information of almost any kind became simple and easily accessible”. At the same time, not all information about a person on the network can be true or relevant at a certain point in time, and an individual should have the right to demand its removal if he considers it necessary for himself. To do this, he can contact the operator of the search engine and demand the limitation or prohibition of the issuance of such information to third parties. Actually, this is the legal essence of the right to be forgotten.

For the first time they started talking about him in May 2014, when the European Court of Human Rights, having considered Mario Contej Gonzalez v. Google case, as a result obliged the search engine to edit certain search results at the request of individuals. When making its decision, the ECHR referred to the then Directive 95/46 / EC on the protection of personal data, regarding the collection and storage of information by Internet search engines as its processing.

In Russia, the institution of the “right to be forgotten” appeared five years ago – on January 1, 2016, when it came into force Federal Law of 13.07.2015 No. 264-FZ

“On Amendments to the Federal Law” On Information, Information Technologies and Information Protection “and Articles 29 and 402 of the Civil Procedure Code of the Russian Federation”… According to clause 1 of Art. 10.3 Law on Information a person can make demands to remove certain links about himself if there are the following grounds: 1) information is distributed in violation of the legislation of the Russian Federation; 2) the information is unreliable; 3) the information is out of date; 4) the information has lost its value for the applicant due to subsequent events or actions of the applicant.

To the disadvantages of the adopted law, experts, in particular, refer to the fact that Law No. 264-FZ does not introduce clear and understandable criteria for the relevance or irrelevance of information that the applicant asks to remove, and does not say a word about whether or not such information is socially significant. For example, from appeal ruling of the Moscow City Court of May 22, 2017 in case No. 33-14853 / 2017 it follows that the search engine (in this particular case – “Yandex”) cannot be held responsible for the dissemination of information if the operator did not know about the illegality of such dissemination. In addition, the court noted, the operator of the search engine is not responsible for posting information by third parties, since its main task is to provide services for the search for information, and not its distribution. Finally, in the opinion of the appellate instance, when submitting an application to Yandex LLC, the plaintiff himself had to indicate what information about him on the website complained of in the application was disseminated in violation of the law (in addition to the need to prove the unreliability and irrelevance of such information).

In general, it should be noted that in Europe and Russia, despite the similarity of approaches to the right to oblivion, there are still quite serious differences in this regard. In particular, in the European Union, data on citizens’ requests can be disclosed if they do not contain their personal data – for example, when it comes to providing statistical information (Preamble 65 GDPR – European Data Protection Regulation). In Russia, search engine operators, in principle, are prohibited from disclosing information about requests made, no matter who and what they may concern, unless otherwise directly established by the current legislation (clause 8 of Art. 10.3 of the Federal Law “On Information, Information Technologies and Information Protection” dated July 27, 2006 N 149-FZ).

In addition, the EU establishes a general exception to the “right to be forgotten”, primarily when it comes to the performance of a task carried out in the public interest (i.e. when the subjects of personal data to be deleted play a significant role in the life of society – politicians, show business stars, oligarchs, etc.), either because of the public interest in health care, or for archiving purposes in the public interest, for scientific or historical research, or for statistical purposes (paragraph 3 of Article 17 GDPR), while in the Russian Federation this exception is private (the search engine operator, according to clause 1 of the same article 10.3 of Law No. 149-FZ, does not have the right to delete only links about crimes for which the statute of limitations has not expired, or which a criminal record has not been removed or canceled from a citizen).

It arises, as E.M. writes. Podrabinok, and the question of how the information, which at the time of its posting on the network was both reliable and legal, and does not violate anyone’s rights, relates to the right to be forgotten: “Such questions may arise in connection with a variety of actions that have taken place or events. And there can be countless similar examples. In this regard, the legal literature raises the question that the right to be forgotten enables individuals to actually “rewrite”, “distort” history. ” The same Moscow City Court came to similar conclusions, but in a different appeal ruling – in case No. 33-10390 / 2017 of March 20, 2017… In their decision, the judges, in particular, pointed out that “the operator of a search engine does not have the right to unreasonably and unsubstantiated at the arbitrary request of a citizen who may pursue various goals, including to conceal reliable and objective information about himself that is freely available on the Internet, stop the search issuance of links to such information, since otherwise the specified constitutional principles will be violated, and the activities of the search engine operator will lose all meaning. “

Indeed, the removal by the operator of a particular search engine of such links to information that have a clear public interest and social significance would signify a clear departure from the constitutional principle of openness and freedom of speech. Any citizen could make it difficult for third parties to access absolutely any kind of information about themselves, the inadmissibility of which draws attention, among other things, to the Constitutional Court of the Russian Federation in its Decree of 09.07.2013 N 18-P

So is it possible to delete about yourself any information from the Internet, thus eliminating your “digital footprint”? Until recently, if we proceed from the direct interpretation of the norms of Law No. 264-FZ, it could be said that certain restrictions did exist in this respect. But at the beginning of December 2020, “Rossiyskaya Gazeta” reported that the State Duma adopted in the first reading bill, which allows users to independently manage their personal data. In particular, a special Roskomnadzor system will be created, with the help of which it will be possible both to revoke consent to posting personal data on the Internet (figuratively speaking, to uncheck the corresponding user agreement) and to demand their deletion and / or refutation.

As noted in the press service of Roskomnadzor, “the main point of the bill is for a person to exercise his right to decide who and what data he provides, in order to make it publicly available, and so that he clearly understands this at the time of giving consent.” The author of the document, deputy Anton Gorelkin, explains that the bill, in contrast to the law on the right to be forgotten, introduces the obligation to delete personal data from all operators at once, and not only from search engines like Yandex or Google. Now Roskomnadzor, according to Gorelkin, is already developing the corresponding technical task, and within the next six months a system should be launched that allows any user to decide for himself what to do with personal information about himself.

It is being debated whether the proposed system will somehow cover consents given prior to the entry into force of the law, Roskomnadzor said. Perhaps, as Anton Gorelkin said, the owners of Internet resources, including social networks, will be asked to revise and re-sign the already concluded user agreements. In addition, it is known that the bill will not apply to information provided to state and municipal authorities (including the police, courts and prosecutors), as well as banks and insurance companies. However, it already seems that such an expansion of the “right to be forgotten” may entail not an expansion of the right to protect a person’s private life, but a threat to the transparency and openness of the society’s information system.

And then we will again face the age-old question: should the freedom of each individual individual be the absolute primacy of his legal status? Or does she still owe really end where another person’s freedom begins? The answer seems to be just around the corner.

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