Lawyerbots

'Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law' by Dana Remus and Frank S. Levy states 

 We assess frequently-advanced arguments that automation will soon replace much of the work currently performed by lawyers. Our assessment addresses three core weaknesses in the existing literature: (i) a failure to engage with technical details to appreciate the capacities and limits of existing and emerging software; (ii) an absence of data on how lawyers divide their time among various tasks, only some of which can be automated; and (iii) inadequate consideration of whether algorithmic performance of a task conforms to the values, ideals and challenges of the legal profession.

Combining a detailed technical analysis with a unique data set on time allocation in large law firms, we estimate that automation has an impact on the demand for lawyers’ time that while measureable, is far less significant than popular accounts suggest. We then argue that the existing literature’s narrow focus on employment effects should be broadened to include the many ways in which computers are changing (as opposed to replacing) the work of lawyers. We show that the relevant evaluative and normative inquiries must begin with the ways in which computers perform various lawyering tasks differently than humans. These differences inform the desirability of automating various aspects of legal practice, while also shedding light on the core values of legal professionalism.

Workers

'Limitless Worker Surveillance' by Ifeoma Ajunwa, Kate Crawford and Jason Schultz in (2017) 105(3) California Law Review comments

From the Pinkerton private detectives of the 1850s, to the closed-circuit cameras and email monitoring of the 1990s, to contemporary apps that quantify the productivity of workers, American employers have increasingly sought to track the activities of their employees. Along with economic and technological limits, the law has always been presumed as a constraint on these surveillance activities. Recently, technological advancements in several fields – data analytics, communications capture, mobile device design, DNA testing, and biometrics – have dramatically expanded capacities for worker surveillance both on and off the job. At the same time, the cost of many forms of surveillance has dropped significantly, while new technologies make the surveillance of workers even more convenient and accessible. This leaves the law as the last meaningful avenue to delineate boundaries for worker surveillance. 

In this Article, we examine the effectiveness of the law as a check on worker surveillance, given recent technological innovations. In particular, we focus on two popular trends in worker tracking – productivity apps and worker wellness programs – to argue that current legal constraints are insufficient and may leave American workers at the mercy of 24/7 employer monitoring. We then propose a new comprehensive framework for worker privacy protections that should withstand current and future trends.

'The Flexible Cyborg: Work-Life Balance in Legal Practice' by Margaret Thornton in (2016) 38(1) Sydney Law Review 1-21 comments

 ‘Work/life balance’ (WLB) emerged as the catchcry of workers everywhere in the late 20th century. It was particularly appealing to women lawyers as it was thought that if a balance could be effected between work and life, satisfying careers and the raising of children could be combined. The key to effecting this balance, it was believed, was flexible work. Technology has facilitated this flexibility as all that is required is a computer, or other device with internet connection, and a mobile phone. Provided that the firm is agreeable, the lawyer would have a degree of autonomy in determining when and where the work is carried out. However, flexible work has not always proved to be the boon that was hoped, for the shift from face-time to virtual time has blurred the boundary between work and life, insidiously extending the hours of work and impinging on the realm of intimacy. Drawing on a web-based survey and interviews with lawyers Australia-wide, this article considers the ramifications of perpetual connectivity for lawyers in private practice, with particular regard to its gender significance.

The ABC reports that  Jennifer Anne Reed faces a maximum penalty of 10 years' jail after passing herself off as a registered nurse for five years. Prosecutors said Reed's deception involved producing fake documents to secure work, including a false CV and references.

Reed  was reportedly exposed as an imposter after she poorly handled a patient who had suffered a fall. She has pleaded guilty to seven counts of deception by using the identity of a registered nurse to work at several aged care homes in South Australia between 2009 and 2014.

After the incident  at the aged care facility Trevu House at Willaston, near Gawler (SA) the facility's acting manager notified the Australian Health Practitioner Regulation Agency (AHPRA) which later uncovered Reed's "elaborate and persistent charade". Documents reportedly demonstrated a "lengthy history of remarkably similar behaviour".

Reed was the director of nursing for Moonta Health and Aged Care in 2014 and was responsible for administering "drugs of dependence" at Trevu House that year . She received wages of almost $350,000 over the five years.

South Australian Privacy Tort report

The South Australian Law Reform Institute has released its 193 page report on the statutory cause of action regarding privacy invasions.

The report features the following recommendations

R 1: The South Australian Parliament should enact a limited cause of action for serious invasion s of personal privacy.

R 2 : The statute should refer to the cause of action as a ‘tort’.

R 3: The cause of action should extend to the pro tection of bodily privacy, territorial privacy, information privacy and communications privacy.

R 4: The cause of action should require that a plaintiff have a reasonable expectation of privacy in the circumstances. The statute should provide a non-exhaustive list of factors that a court may take into account in making that assessment. In developing this list, guidance should be taken from the list of factors recommended in the ALRC 2014 Report.

R 5: The statute should provide th at the cause of action extend to intrusions upon a person’s seclusion and misuse of a person’s private information.

R 6: The statute should include the following non-exhaustive guiding examples:

• For intrusion upon seclusion : by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs . 

• For misuse of private information : by collecting or disclosing private information about the plaintiff .

R 7 : The statutory cause of action should provide that ‘private information’ includes untrue information, but only if the information would be private if it were true .

R 8 : The fact of invasion is sufficient; that is, a plaintiff would have a cause of action if their privacy was invaded, even if the defendant did not further disclose or disseminate information or material obtained in the course of the invading act.

R 9 : The cause of action should provide that the invasion be serious. Whether the invasion is sufficiently serious to give rise to an action will be left for the court to decide, having regard to:

• (an objective test) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; 

• (a subjective test) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff; and 

• any other factors the court considers relevant.

R 10 : The Institute considers that a public interest test should be an element of the proposed cause of action. In determining whether a cause of action has been established, a court should be required to take into account whether the public interest in maintaining a plaintiff’s privacy outweighs other issues of public interest .

The statute should set out a non-exhaustive list of examples that a court may consider, along with any other relevant public interest matter. The list should be made having regard to the ALRC 2014 Report and the specific activities deemed to be of ‘legitimate public purpose’ in the 2012 amendments introducing the humiliating and degrading filming offences to the Summary Offences Act 1953 (SA), taking into account any overlap and interplay with the other elements and defences listed in this Report .

R 11 : The statute should expressly provide that t he cause of action is actionable without proof of damage.

R 12 : The kinds of harm or loss which are compensable should be cast as broadly as possible and should at least include emotional distress.

R 13 : The cause of action for invasion of privacy should apply to conduct that is either intentional or reckless but not accidental or negligent . There must exist either an intention to invade someone’s privacy or recklessness as to that fact. Recklessness in this context means where the defendant is aware of the risk of an invasion of privacy and is indifferent to whether or not an invasion of the plaintiff’s privacy would occur as a result of the conduct .

R 14 : The statute should provide that the cause of action only be available to natural persons.

R 15 : The statute should provide that the cause of action be confined to living persons.

R 16 : The consent (implied or inferred and freely given) of the plaintiff (or by an individual who has legal capacity to consent on their behalf) should be a complete defence to the action. The statute should make it clear that for the purposes of the defence, the consent must be to the particular disclosure or conduct constituting the invasion, including in the case of publication or dissemination, the extent of that publication or dissemination.

R 17 : There should be a defence for conduct incidental to the exercise of a lawful right of defence of person or property, where:

• the defendant believes, on reasonable grounds, that the conduct was necessary; and

• the defendant’s conduct is proportionate to the perceived threat.

R 18 : There should be a defence of necessity.

R 19 : There should be a defence for conduct which was required or authorised by law. For the purposes of this defence ‘law’ should be defined broadly and should mean the law as applicable in South Australia. The definition should include:

• the general law; 

• Commonwealth Acts, regulations, legislative instruments and other instruments made under a Commonwealth Act; 

• South Australian ‘Acts’ and ‘statutory instruments’ (as defined in the Acts Interpretation Act 1915 (SA));  

• orders made by courts and tribunals; 

• prerogative powers; and 

• documents that have the force of law pursuant to an Act.

The statute should make it clear that the absence of a law prohibiting particular conduct should not, of itself, mean that that conduct is authorised by law.

20 : There should be defences which are in similar terms to , and co-extensive with, the following defences to an action in defamation under the Defamation Act 2005 (SA):

• the defence of fair report of proceedings of public concern; 

• the defence of innocent dissemination;  

• the defence for publication of public documents;  and

• the defence of absolute privilege

R 21 : It should not be a defence to the cause of action to prove that the information was in the public domain prior to the invasion.

R 22 : The cause of action should not include any complete exemptions. However, consideration should be given to exempting (or in some other way excusing) young persons from liability.

R 23 : The remedies available for an invasion of privacy should include:

•  account of profits; 

• injunctions; 

• orders of correction or apology; 

• delivery up (including orders to take down)

• declarations; 

• damages; and 

• any other relief that the court considers appropriate in the circumstances.

R 24 : The statute should provide that a court may award as many different remedies for an invasion of privacy as it sees fit.

R 25 : The statute should expressly require courts to consider all relevant competing public interests (including, but not limited to, freedom of expression) prior to granting an injunction as a remedy for an invasion of privacy.

R 26 : The statute should require courts to draw on established principles of tort law when determining the appropriate award of damages (and should consider awards in analogous cases for other torts).

R 27 : The statute should contain the following non - exhaustive list of considerations relevant to the determination of the award of compensatory damages:

(a) whether the defendant has made an appropriate apology to the plaintiff;

(b) whether the defendant has published a correction;

(c) whether the plaintiff has already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;

(d) whether either party has taken reasonable steps to settle the dispute without litigation; and

(e) whether the defendant’s unreasonable conduct following the invasion of privacy, including during the proceedings, has subjected the plaintiff to particular additional embarrassment, harm, distress or humiliation.

R 28 : The statute should prevent courts from awarding aggravated damages as a separate head of damage.

R 29 : The statute should expressly allow courts to award exemplary damages in exceptional cases.

R 30 : The statute should expressly allow courts to award nominal damages.

R 31 : The statute should impose a maximum amount of damages that may be awarded for the combined sum of the award for non - economic loss and the award for exemplary damages (if any). The maximum amount should be consistent with the maximum imposed by s 33(1) of the Defamation Act 2005 (SA), which is currently $250,000.

R 32 : The statute should allow a plaintiff to bring a claim within the earlier of one year from the date the plaintiff became aware of the invasion of privacy or six years from the date of the invasion of privacy. The one year limitation should be open, in exceptional circumstances, to extension by the  court, but not beyond six years from the date the invasion occurred.

R 33 : A plaintiff should be able to bring an action for invasion of privacy in the Supreme Court of South Australia, the District Court of South Australia or the Magistrates Court of South Australia.

R 34 : The costs should be determined in accordance with the relevant rules of the court in which the matter is heard

NSW Privacy Tort Report

The NSW Legislative Council Standing Committee on Law and Justice has released its report on Remedies for the serious invasion of privacy in New South Wales.

The Committee's terms of reference were

to inquire into and report on remedies for the serious invasion of privacy in New South Wales, and in particular: (a) the adequacy of existing remedies for serious invasions of privacy, including the equitable action of breach of confidence (b) whether a statutory cause of action for serious invasions of privacy should be introduced, and (c) any other related matter. 

Its recommendations are

R 1 That the NSW Police Force:

a) ensure that its officers receive training in the harms associated with technology-facilitated stalking, abuse and harassment; and 

b) that the training incorporate education about how existing offences and other orders, such as apprehended violence orders, could be used in respect of allegations of that nature. 

R 2 That the NSW Government undertake a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 to consider additional potential remedies available to the Local Court to protect the privacy of individuals who have been or are seeking to be safeguarded by apprehended domestic violence orders. 

R 3 That the NSW Government introduce a statutory cause of action for serious invasions of privacy. 

R 4 That in establishing the statutory cause of action at recommendation 3, the NSW Government base the action on the Australian Law Reform Commission model, detailed in its 2014 report, Serious Invasions of Privacy in the Digital Era. 

R 5 That in establishing the statutory cause of action at recommendation 3, the NSW Government should consider incorporating a fault element of intent, recklessness and negligence for governments and corporations, and a fault element of intent and recklessness for natural persons. 

R 6 That the NSW Government:

a) broaden the scope of the NSW Privacy Commissioner’s jurisdiction to enable the Commissioner to hear complaints between individuals relating to alleged serious invasions of privacy; 

b) empower the NSW Privacy Commissioner to make determinations that involve non-financial forms of redress, including apologies, take down orders and cease and desist orders 

c) ensure that the NSW Privacy Commissioner is empowered to refer a complaint on behalf of a complainant to the NSW Civil and Administrative Tribunal for hearing for a statutory cause of action where there is a failure to act on a non-financial form of redress, including apologies, take down orders and cease and desist orders, and 

d) ensure that the Office of the NSW Privacy Commissioner is adequately resourced to enable it to fulfil its functions arising from the expanded scope to deal with complaints arising from alleged serious invasions of privacy.  

R 7 That the NSW Government confer jurisdiction on the NSW Civil and Administrative Tribunal to enable it to hear claims (in addition to ordinary civil courts) arising out of the statutory cause of action for serious invasions of privacy at recommendation 3.

SNS

'Destined to Collide? Social Media Contracts in the U.S. and China' by Michael L. Rusted, Thomas H. Koenig and Wenzhuo Liu in (2016) 37 University of Pennsylvania Journal of International Law considers SNS terms and conditions.

The authors state

Part I of this article is the first empirical examination of the Chinese social media universe. We develop a typology of twenty-five of China’s most popular social media sites and compare terms of use from these social media with their U.S. counterparts. 

Part II compares the contracting practices of Facebook, Twitter, and Match.com to their Chinese equivalents. The core finding is that U.S. social media providers use terms of use to reduce their liability and protect their rights to the maximum. China social media providers rarely foreclose consumer rights and remedies in their terms of use but do include clauses that forbid user conduct that incites racial, ethnic, or religious disharmony or otherwise harms national stability.

Part III contrasts the terms of use of twenty-five of America’s largest and most popular social media sites’ terms of use with terms devised by the twenty-five largest Chinese social media providers. U.S. social media sites construct fine print boilerplate that include one-sided warranty disclaimers, caps on damages, mandatory arbitration and anti-class action waivers – provisions that are rarely found in the Chinese sites. Chinese social media terms of use frequently violate Western rights to free expression. We explore the doctrinal basis underlying these diametrically opposed mass-market agreements by comparing U.S. to Chinese law. The largest social media providers in both the United States and China have global ambitions and thus must devise user agreements that harmonize with the laws and policies of other nations if they are to avoid serious legal and cultural clashes.

Surveillance

'Surveillance Policy Making by Procurement' by Catherine Crump comments

The Seattle police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. Following a council review that lasted literally two minutes, the Oakland police created a data information center that networked together all of the city’s existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology.

In an age of heightened concern about the militarization of local police and surveillance technology, how is it possible for municipal law enforcement agencies to obtain cutting edge and potentially highly intrusive surveillance equipment without the knowledge of elected leaders and the general public? The answer lies in the multi-billion-dollar process of federal procurement, a process with which the federal government funnels resources to local law enforcement agencies to purchase surveillance equipment. Because of the way in which federal procurement operates in practice, the absence of a political check on the use of surveillance technology often poses significant privacy concerns. Surveillance policy making by procurement thus raises a host of questions related to the delicate balance between administrative and political policy making, privacy, and public safety.

This article is the first to comprehensively consider the intersection of procurement and local surveillance policy making. Using case studies from Seattle, Oakland, and San Diego, it exposes the practice of surveillance policy making by procurement. It argues that, although a large and persuasive literature touts the value of deference to the expertise of agencies in technical policy making, local elected representatives should have the lead role in formulating surveillance policy, with input from both law enforcement agents and members of the public. Surveillance technology invariably raises questions regarding how data will be collected, retained, used, and shared. Communities have differing values and needs, and the political process is best suited to ensuring that legitimate community concerns are brought to bear on surveillance policy making. The article concludes by proposing politically feasible steps to strengthen democratic control of police surveillance while maintaining appropriate deference to the legitimate role of limited administrative policy making in the law enforcement context.

The Seattle police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. Following a council review that lasted literally two minutes, the Oakland police created a data information center that networked together all of the city’s existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology.

In an age of heightened concern about the militarization of local police and surveillance technology, how is it possible for municipal law enforcement agencies to obtain cutting edge and potentially highly intrusive surveillance equipment without the knowledge of elected leaders and the general public? The answer lies in the multi-billion-dollar process of federal procurement, a process with which the federal government funnels resources to local law enforcement agencies to purchase surveillance equipment. Because of the way in which federal procurement operates in practice, the absence of a political check on the use of surveillance technology often poses significant privacy concerns. Surveillance policy making by procurement thus raises a host of questions related to the delicate balance between administrative and political policy making, privacy, and public safety.

This article is the first to comprehensively consider the intersection of procurement and local surveillance policy making. Using case studies from Seattle, Oakland, and San Diego, it exposes the practice of surveillance policy making by procurement. It argues that, although a large and persuasive literature touts the value of deference to the expertise of agencies in technical policy making, local elected representatives should have the lead role in formulating surveillance policy, with input from both law enforcement agents and members of the public. Surveillance technology invariably raises questions regarding how data will be collected, retained, used, and shared. Communities have differing values and needs, and the political process is best suited to ensuring that legitimate community concerns are brought to bear on surveillance policy making. The article concludes by proposing politically feasible steps to strengthen democratic control of police surveillance while maintaining appropriate deference to the legitimate role of limited administrative policy making in the law enforcement context.

Forgetting Again

'A historian’s view on the right to be forgotten' by Antoon De Baets in (2016) International Review of Law, Computers and Technology explores

the consequences for historians of the ‘right to be forgotten’, a new concept proposed by the European Commission in 2012. I first explain that the right to be forgotten is a radical variant of the right to privacy and clarify the consequences of the concept for the historical study of public and private figures. I then treat the hard cases of spent and amnestied convictions and of internet archives. I further discuss the applicability of the right to be forgotten to dead persons as part of the problem of posthumous privacy, and finally point to the ambiguity of the impact of the passage of time. While I propose some compromise solutions, I also conclude that a generalized right to be forgotten would lead to the rewriting of history in ways that impoverish our insights not only into anecdotal lives but also into the larger trends of history. ...

In this essay, I strongly defended a right to forget. But whereas I see much quality in forgetting acts of others and much necessity in privacy for oneself, as a historian I see neither quality nor necessity in forcing others to forget you, for basically the same reason why I reject forcing others to remember you: it is an act of coercion in the realm of holding and expressing opinions. Oddly enough, some seem to think that when persons are able to invoke a right to be forgotten, they will also be encouraged to freely express themselves because their opinions are then reversible. In contrast, I think that a generic chilling effect is more likely. The protection of A's privacy bolsters A's free expression, but A's right to be forgotten, as a radical offshoot of A's privacy and regulator of sources about A, chills B's rights to information and expression. A right to be forgotten disproportionally distorts the balance between free expression and privacy in favour of privacy in the already privacy-favourable European context. It will encourage data controllers to err on the safe side. As Van Hoboken wrote, this effect may produce a bias towards uncontroversial information in search engines and related services. This is a fatal bias for any scholar of internet resources (Van Hoboken 2011). Only in the case of children do I see legitimacy in erasing information previously posted by themselves on the internet. Only for spent convictions do I see legitimacy in minimum anonymization upon request and in a right of reply. A generalized right to be forgotten, however, would lead to the rewriting of history in ways that impoverish our insights not only into anecdotal lives (which is justified in a small class of recent cases) but also into the larger patterns and trends of history. If we remember this, we better forget it.

'The right to be forgotten in the light of the consent of the data subject' by Cesare Bartolini and Lawrence Siry in (2016) Computer Law and Security Review takes a more nuanced view, commenting

Recently, the Court of Justice of the European Union issued decision C-131/12, which was considered a major breakthrough in Internet data protection. The general public welcomed this decision as an actualization of the controversial ‘right to be forgotten’, which was introduced in the initial draft for a new regulation on data protection and repeatedly amended, due to objections by various Member States and major companies involved in massive processing of personal data. This paper attempts to delve into the content of that decision and examine if it indeed involves the right to be forgotten, if such a right exists at all, and to what extent it can be stated and enforced. ...

In an age of instant access to vast amount of material, policy makers must search for solutions which allow digital citizens the ability to maintain control over the image they present to the world. The DPD represented a step in this direction. Adopted in 1995, during the infancy of digital age, it represented a progressive protection regime which addressed technological developments of that age. Since then the Internet has exploded and changed the landscape of what it means to be a digital citizen. It has transformed the concepts of privacy, access and consent.

Yet with each action comes a reaction. One such action is currently being undertaken in the form of the GDPR, which seeks to shift the balance of power away from the data controllers in favor of the DSs, if only ever so slightly. Through its adoption of a right to be forgotten the EU will simplify and embolden citizens' right to control their image in the web. The existing provisions which allow limited editorial control based on objection or consent will be replaced. Yet, in the meantime, the CJEU's decision against Google Spain has, to a certain extent, complicated the debate. Does the decision recognize a previously existing right to be forgotten? Or rather is the Court simply morphing the right to objection in order to fill a void in existing law in order to protect rights of users within the spirit of existing legislation?

The Court could not enforce a right that does not exist in the current legislation. And yet, what it could do was to plant the seeds, to affirm something that goes in the direction of the right to be forgotten, although it is a mere application of the right to object.

What did the Court achieve? Very much, and very little. The clear statement that the search engine is a data controller is a definite step forward in adapting the existing data protection principles to the new technological context. And yet, on a concrete ground, the effect on the case was the opposite than the upholding of the claim actually aimed at. The original content on the Spanish website is still available; it cannot be found on Google Spain using only the name of the claimant as the search string, but the search service from different countries still displays those results, as does the Spanish service by using a more detailed search string; and the claimant has earned a lot of visibility, which was probably the opposite of what he wanted.

Under the existing legal framework, the Court could not require the original data to be erased. At any rate, those data (actually a copy of an old issue of a newspaper from the archive repository) were unlikely to be looked for in the original website, thus not causing any harm to the claimant's reputation. The harm came from the fact that the search engine brought under present light something that had no real interest. The decision finds a balance between the rights granted by Articles 8 and 11 of the Charter: once the public interest in the information on the subject has ceased, the right to the DS's personal data must prevail.

The Court stopped here. The decision was based on the context “here and now”, and several critical issues were left open. First off, many search strings, involving or not the name of the DS, display those results. To what extent should the search engine be forced to disable those results? Of course, if Google is obliged to avoid the indexing of those results in response to more search strings, the limitation to the freedom of information is stronger, and at some point the balance shifts. Finding the perfect balance is extremely hard, but that topic was not discussed in the decision.

Second, the Court discussed the facts in a static perspective. If the DS runs for a political career or a position with significant public responsibilities, then maybe what has been considered an obsolete and irrelevant information about his past financial problems may become interesting again in the eyes of the public. The transparency of the information to the public might suddenly shift the balance back in favor of the ease in finding those results. A dynamic analysis of the possible scenarios is not available yet.

It seems that the Court planted a seed. Possibly, it used the case to put its endorsement upon an idea which has been struggling to gain full approval from the legislature of the European Union, even without recognizing its existence under the current legal framework: the right to be forgotten. Quite possibly, the Court is sending a signal that it will recognize the essence of a right until it is adopted into codified law.

'The right to be forgotten – a Dutch perspective' by AJ Verheija in (2016) International Review of Law, Computers and Technology investigates

to what extent the right to be forgotten as proposed by the European Commission is already recognized in Dutch tort law. The focus of this paper will be on the existence and the desirability of such a right and not on questions of enforcement. It is submitted that although Dutch law does not recognize the right to be forgotten as such, several judicial decisions can be identified that afford protection to interests that are also protected by the proposed right to be forgotten. This indicates that in the Netherlands a right to be forgotten in some form or another might have developed over time but this would have been a lengthy affair. A more precise formulation of this right by the legislator is therefore welcomed. It has been remarked that the name ‘right to be forgotten’ may give rise to unrealistic expectations but the Dutch experience shows that people do not seem to be very aware of their rights. ‘A right to be forgotten’ – however imprecise from a legal viewpoint – might be catchy enough to remedy this.

Verheija concludes

On the basis of the above decisions, it can be concluded that there is a right not to be confronted with one's past after a certain time has elapsed. When exactly this right comes into existence is unclear; everything depends upon the individual circumstances of the case. Despite its constitutional roots, this right therefore seems to offer less protection than more traditional, well-delineated rights that are recognized by private law. Judges attach a lot of weight to the context in which past crimes are raked up. A political debate on immigration law does not justify a detailed description of an over-a-decade-old crime that reveals the identity of the convict. In their contextual approach, judges seem sensitive to mitigating measures by defendants that strike a balance between the right to privacy and to reputation on the one hand and the right to free speech on the other hand. Illustrative of this are the considerations of the Court of Amsterdam on the disclaimer of the movie based on the kidnapping of Freddy Heineken. It estimated that although the disclaimer was not in sight for a long time and was difficult to read, the public who went to see the movie in the cinema would be aware of the fictitious character of many scenes due to current newspaper coverage. The Court acknowledged that this might not be the case for people who would see the DVD version in the future but it was satisfied by the fact that in the DVD version the disclaimer would be shown for longer.

In the last two cases, the right to privacy did not protect against internet publications about children without the consent of their legal representative. Again, the courts did not formulate a hard and fast rule but weighed all the circumstances of the case. Of special relevance were the nature of the information, the extent to which the information was public, and the fact that defendants were the fathers of the children concerned. The mere possibility that this information might be used by third parties to the detriment of the mothers and/or the children was in itself deemed insufficient to support a prohibition. A prohibition was granted, however, when such a risk could be made concrete with reference to the work of the mother.

This means that Dutch tort law does not in any general way protect people who disclose personal (but not embarrassing or defaming) information on the internet themselves and later on wish to delete it. Only when this information is used by others to harass them or when a very long time has elapsed does the law offer protection. When companies collect information on the internet, the Wbp (by which Directive 95/46/EC was implemented) provides some protection but there is evidence that this law does not work very well in practice.

It is therefore submitted that although Dutch law does not recognize the right to be forgotten as such, several judicial decisions can be identified that afford protection to interests that are protected by the proposed right to be forgotten. This indicates that, in the Netherlands, a right to be forgotten in some form or other might have developed over time. Both the structure of Dutch tort law with its emphasis on conduct and not on protected interests and the open-ended nature of tort law principles are likely to have made development of such a right to be forgotten a lengthy and cumbersome process. A more precise formulation of this right is therefore to be welcomed. This would create a foundation to build without stifling further development. It has been remarked, with some justification, that the name ‘right to be forgotten’ may give rise to unrealistic expectations, but the Dutch experience with Directive 95/46/EC shows that people do not seem to be very aware of their rights. ‘A right to be forgotten’ – however imprecise from a legal viewpoint – might be catchy enough to remedy this.

'Germany’s ‘Right to be forgotten’ – between the freedom of expression and the right to informational self-determination' by Claudia Koddea in (2016) International Review of Law, Computers and Technology argues that

Although never having defined it explicitly, German law and jurisprudence imparted a right to be forgotten which could be described as a right to delete long ago. Its basis can be found in the constitution where it is torn between the freedom of expression and the right to informational self-determination. Also, German legislature introduced non-constitutional provisions ensuring the deletion of personal data in specific cases that are applied regularly. This article aims to give an overview of the ‘German’ right to be forgotten, its legal framework and its application in court. ....

The first part of this article has shown that the Grundgesetz provides a right for data subjects to decide for themselves about release and use of their personal data. This right to informational self-determination is an implementation of the right of personality and does not only grant a right to decide about the circumstances of a disclosure of data but also a right to remain the ‘master of one's private data’, meaning that the data subject also has the right to ask for the erasure of his/her data. However, as the data subject is only a small part of society, his or her constitutional right has to be balanced against the rights of others.

The second part covered the current legal framework concerning a right to be forgotten or, more narrowly, a right to delete. The relevant Section 35 Paragraph (2) BDSG transposes Art. 12 Paragraph (b) of the Directive 95/46/EC and grants a right to delete in a number of cases. One of the most problematic points regarding these provisions is the question of responsibility, especially in the case of search engines. A data subject generally has the right to withdraw consent, which would lead to a right to delete, but it must not be forgotten that the right to revoke consent has to take possible legitimate interests of the service providers into consideration.

Furthermore, if the data in question are openly accessible, a deletion becomes even more difficult. If one argues that data on profiles in social networks where the user did not restrict the visibility or privacy settings are openly accessible, even a deletion of this social network profile will be only of limited help because the withdrawal of consent does not affect the lawfulness of the processing prior to the withdrawal.

The last part of this article dealt with different court cases in which plaintiffs had asked for a deletion of personal data. In all cases, no matter if the BDSG was applicable or the claims had to be based on the more general provisions of Sections 823 and 1004 BGB, the Court had to balance the constitutional rights of the defendant, such as the right to the freedom of expression or the right to information, with the right to informational self-determination of the plaintiff. One can say that, although Germany has adopted a rather protective system of data protection, the right to information of the public is one of the most important constitutional rights, which often outweighs the other rights.

It appears that not only scholars but also judges and other jurists either do not like the notion of a ‘right to be forgotten’ or do not see a basis for it in the German law. Otherwise, it is difficult to explain why not a single decision can be found mentioning this term. The main reason for this might be the biggest problem of the right to delete in the BDSG and it is not a legal one. Although the legislature tries to protect the citizens the best it can, the enforcement of the rights in practice is almost impossible. Often internet users will not know to whom their data was transmitted and they will not even try to pursue their claim in court. Although one has to admit that a right to be forgotten, where the data subject only has to ask a single controller to delete the data and the controller will ensure the deletion of every copy whoever holds it, does not exist in German law, the existing provision grants at least ‘a small right to be forgotten’. The fact that it is hardly used shows the need for other solutions, especially technical ones. In short: the theory is ready. It only waits for the practice.