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Right to be forgotten and e-commerce

Right to be forgotten and e commerce

The “right to be forgotten” concept presumes that, upon request, third parties that have information concerning individuals or entities should remove such information deemed private or damaging.
The concept extends to past events that are no longer occurring, yet their traces are present in the Internet records. Publicly known information that used to be accessible can be removed in virtue of these regulations. Once third parties are under the jurisdiction of such regulations, the right to be forgotten leads to Internet history deletion and distortion.

Current status

In September 2014 a panel of people appointed by Google met in Madrid to debate the controversial concept mentioned above. Freedom of information is the counterbalancing concept in this issue and search engines providers were looking to find out an equilibrium between the two. Two previous legal decisions that forced Google to de-index certain search results brought into discussion the role held by Internet search engines in the portraying of individuals, as well as of economical entities, by structuring information concerning past events. The “border-less” Internet environment was seen as facilitating a certain type of abuse in what concerns the property of others.

Google allegedly received over 100,000 “right-to-be-forgotten” requests from people who wanted information about them removed, at the time of the 2014 Madrid meeting. The number of requests received up to July 2015 is around 281,000 individual requests, mostly concerning social media posts and different types of online history and/or images.

The content itself cannot be removed, but rather hidden from search engines, to protect the information. Google refused to globally extend the procedure by default, so it still depends on its legal status in specific geographical areas. The refusal came in reply to CNIL’s (Comission nationale de l’inforrmatique et des libertés – the data protection authority) request in France. Different versions of the search engine’s results would show certain elements or not, depending on the laws applying. The debate between Google and CNIL is to go on for a while, and its results may generate precedents.

As often the case, the European Union is more restrictive and insists on applying the right to be forgotten, as you may see here, in an exhaustive comparative study of this issue’s status.
The requests are treated on a case-to-case basis and over 70 percent of them were rejected by Google up to May 2015. Nevertheless Consumer Watchdog is trying to bring the system to the U.S. and has petitioned the Federal Trade Commission using the privacy motivation.

How does this affect e-commerce?

Web shops and especially SMEs are concerned about the administrative burdens brought on by applying the right to be forgotten. This is an European problem for now, but taking into consideration the efforts made to bring this system into the U.S., it might soon become a global concern. Seeing that e-commerce is global by nature, even in this stage when search results are modified in some countries, such procedures can prove confusing and contrary to the transparency and un-censored Internet image we have gotten used to.

This system primarily affects the vast pool of private data that serves digital marketing. Using this data to understand consumer behavior and structure ad campaigns and marketing strategies will become increasingly challenging when the targeted market abides by the right to be forgotten rules. Marketing algorithms can be destabilized at any time if the requests for data removal are to be followed through.

The motivation accepted for such requests plays an important role – whether removal can be solicited simply for privacy protection or just for a determined array of pre-established reasons could make a big difference. Even so, not being able to take into consideration market segments when generating patterns or behavior studies could compromise the results. An older analysis of what the European changes mean for the American market might give you an idea of the relationship between e-commerce and the right to be forgotten.

Local regulations lead to the fragmentation of international e-commerce and raise technical barriers based on customer location. When companies aim at internationally competing in digital commerce, at being able to bring offers and campaigns to all their customers-to-be, this effect is seen as retrograde.

On the one hand, the Internet is leveling accessibility and international shipping ensures customer reachability; on the other hand these facilities cannot be used if local regulations impose local restrictions. New barriers appear and the global market remains fragmented, regardless that the old issues have resolved.

For an in-depth view of this topic, you can consult here the U.S. Chamber of Commerce trade impact assessment entitled “The Economic Importance of Getting Data Protection Right: Protecting Privacy, Transmitting Data, Moving Commerce” dating March 2013. The regulatory coherence issue is also reiterated in the larger topic of TTIP (Transatlantic Trade and Investment Partnership) discussions.

Near future

Aside from taking into consideration the limits brought on by the right to be forgotten and the locations affected by this rule, it remains to be seen whether the e-commerce organisms will find a way of sheltering their operations from its effects.
An opt-out agreement adopted by online customers might be possible, for example. If a client agrees to step out of the hypothetical area of the right to be forgotten rule, before engaging a business relation with a digital commerce entity, might that be enough to cover all future events?
Again such an option would depend on the local policy on whether a citizen is entrusted the right of deciding to renounce such a mechanism or not.

Or, to put it differently, are we mature enough to individually decide a priori whether the traces we leave on the Internet should maybe one day make the object of a request removal, or not? Is the right to be forgotten a fundamental human right or a minor, optional one, depending on each person’s decision?

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