Why we’ll have to wait a little longer for right to be forgotten

Under the new law, websites are therefore required to "have in place mechanisms to identify" those who interact on the forums, and that cyber cafes keep user logs for up to 12 months. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • The European Court of Justice intimated that people should not continually be publicly linked with their negative past.
  • Many countries allow records of court cases to be expunged if the offender has stayed clean for a number of years.

An increasing number of readers keep asking “to be forgotten” — that is, to have information about them removed from Nation Online.

People, for example, charged with a crime ask for the story to be removed from the Internet.

Such is the case of Elvis Tomasic, who was charged with drug trafficking. He has asked for the story to be taken down.

According to the prosecution, Mr Tomasic, a Slovenian, was arrested along with 21 Kenyans while packing bhang disguised as tea leaves for export in a godown near Moi International Airport, Mombasa.

The Kenyans pleaded guilty and each one of them was jailed for three years.

Mr Tomasic denied the charges and was freed on a Sh100,000 bond.

NEGATIVE PAST
The story was published online by the Daily Nation on October 18, 2005.

I have found no follow-up to the story; so, it is not clear whether he was subsequently convicted or acquitted.

“Can you, please, remove the content from your web page,” Mr Tomasic now pleads. “This was an event in 2005.”

If he made the request in Slovenia, a member of the European Union since May 2004, he would be supported by a judge-made law and Google would, probably, be ordered to remove the story from its search engine so that nobody in Europe can read it.

In a case brought by a Spanish businessman who wanted a story about an auction for his foreclosed home for a debt that he had subsequently paid removed, the European Court of Justice ruled in May 2014 that there is a “right to be forgotten”.

People, the court intimated, should not continually be publicly linked with their negative past.

REFORM
Google is now required in the EU to respond to any reasonable request to remove information that is “inaccurate, inadequate, irrelevant or excessive”.

Many countries, in fact, allow records of court cases to be expunged if the offender has stayed clean for a number of years.

In Kenya, however, there is no law, judge-made or statutory, that requires the expungement of court records as a right to be forgotten.

Article 35 of the Constitution, however, states that “every person has the right to the correction or deletion of untrue or misleading information that affects the person”.

But Article 35 would not help Mr Tomasic because he is not questioning the accuracy of the court story.

In general, the media are reluctant to unpublish stories unless they are legally required to do so because the stories are inaccurate or defamatory.

This is so because to take down a story is the equivalent of saying the event never took place.

COURT STORIES
For court stories, the standard practice is not to unpublish, but to add an update if charges are dropped or the accused acquitted.

The idea is to preserve freedom of expression and the integrity of the published record — all in the interest of the public’s right to know.

Takedown requests are, therefore, rarely entertained unless there are legal or ethical reasons to do so.

A takedown means removing a story entirely from the Internet.

But the same story cannot be “taken down” from a newspaper or television or radio broadcast. In such cases, only corrections can be published in subsequent editions".

PRIVACY

A printed or broadcast story, therefore, remains published forever; so, even taking down the digital version does not entirely unpublish it if it also appeared in print or on air.

A story should, however, be corrected on both digital and print platforms in the interest of justice and fairness as well as protection of privacy.

The best practice is to correct the story and tell the reader why it is being corrected.

To do so without revealing the reason for it is considered to be dishonest journalism.

Mr Tomasic is asking for a takedown, not correction.

I tremble to think what will happen when I take the request to the editor. That is, if I do.

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