Search engines
Is there a right to be forgotten?
The right to be forgotten on the internet allows you to decide what digital traces you leave and to define the degree of privacy of your online life.
Search engines
The Internet never forgets
Digitalisation and the intensive use of the internet, especially social media, have led to a lot of data about users becoming accessible on the internet.
As soon as data about a particular person is available on the internet, almost anyone can find this data using a search engine, and unlike humans but like elephants, the internet never forgets.
A great deal of information whose publication was perfectly justified at the time can still be found on the internet several years later. If the content concerns the personality of an individual, the question arises after a certain period of time whether there is still a justifiable public interest in being able to access this information. Even facts and events that happened before the internet age are affected: The paper archives of authorities, newspapers or libraries, for example, are digitised and put online. This is how events from the past can resurface after several years and come back to haunt you.
In addition, it is now easier than ever to release information online without the person concerned's consent or them even knowing about it. Once on the net, the data can be copied by third parties, further processed and used for completely different purposes. With the help of search engines, this kind of data is easy to find, and its further use cannot be controlled by the persons concerned or by those who have published it. Whether information is published on the internet intentionally or unintentionally, it can end up being harmful to those concerned.
Right to be forgotten
The right to be forgotten can provide a way for individuals to take control of the information that concerns them. Although this right is not explicitly provided for as such in the law, it is an expression of the individual's right to what the German courts have termed ‘informational self-determination’ (informationelle Selbstbestimmung), i.e. the right to determine for yourself what information about you is generally accessible.
As far as data protection is concerned, the right to be forgotten is a practical application of the principle of proportionality, in that personal data that is no longer needed or no longer of public interest should be deleted or made anonymous. This is not, however, an absolute legal entitlement.
Other interests may also be at stake in individual cases. There is, for example, a fine line between freedom of expression and of information (Art. 16 Cst.) and the right to privacy (Art. 13 Cst.) for texts published on the internet. It is therefore important to carefully weigh up the pros and cons of the right to privacy (right to be forgotten) and the interest in the publicity of the data. The balance of interests varies from case to case as to whether the violation of the personal rights of the person affected by the publication of information is justified by a competing interest or not.
Legal restrictions
There is already legislation that defines the right of data subjects to the protection of their privacy and determines when personal data may be disclosed by the state because there is an overriding public interest in this information (e.g. in the case of information in the commercial register, Art. 936 CO) and when the interest of the individual prevails (e.g. in the case of entries in the public telephone and address directory, Art. 12d TCA, or in the case of the publication of Federal Supreme Court decisions ,Art. 27 para. 2 FSCA).
Tips for data controllers
1
If you operate a website, you should provide your contact details to users and respond to privacy requests.
2
If you operate a platform where users can activate their own content, you still share responsibility for compliance with the data protection regulations. You should therefore provide terms of use for your users and take measures to prevent unlawful breaches of privacy.
Tips for persons whose data is processed
1
It is up to each individual to find a happy medium between self-expression/visibility and the need for confidentiality and privacy when engaging in life online. Think carefully about what you want to reveal about yourself before you post anything on the internet, since any information you post on the internet can be easily reused in the way mentioned above.
2
Regularly search for your name using search engines and check what results come up.
3
You can ask website operators to delete information concerning you if you believe that it has been published without justification.
4
You usually have to give your consent for any pictures of you to be published and can withdraw your consent at any time. Consent is not required provided there is an overriding public or private interest that justifies publication of your information. However, great care must be taken in assuming consent, especially in the case of images of individual persons (e.g. when reporting on important public occasions such as sports events, concerts, etc. or in media reports that comply with the journalist’s duty of care).
5
The publication of intimate images taken without the consent of the person concerned may be subject to prosecution under Article 179quater of the Criminal Code. The offence known as ‘sextortion’ is committed when someone blackmails another person by threatening to publish intimate photos of that person. Find out more about this topic on the website of the NCSC and on the website for Swiss crime prevention (website available in German, French and Italian).
6
You also have the right to demand that search engines suppress certain information when displaying search results if the information breaches your personality rights. The operator must consider the interests and inform you of their decision.
7
If you believe that the disclosure of your name in connection with the publication of a Federal Supreme Court decision concerning you constitutes an unjustified breach of your privacy, you can contact the Federal Supreme Court directly, state your case, and request that the decision be published in anonymous form only.
Links
- Have content removed by Google
- Case law of the Federal Administrative Court Moneyhouse I (A-4086/2007)
- Have entry deleted from the public directory (web oage available un German, French and Italian)
- Guidelines of the European Data Protection Board on the criteria of the Right to be Forgotten in the search engines case under the GDPR
Further topics
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Last modification 11.05.2023