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2015 11 11 WS 31 The Right to Be Forgotten Rulings and their Implications Workshop Room 1 FINISHED
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The following are the outputs of the real-time captioning taken during the Tenth Annual Meeting of the Internet Governance Forum (IGF) in João Pessoa, Brazil, from 10 to 13 November 2015. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the event, but should not be treated as an authoritative record. 





     >> MARIANNE FRANKLIN:  Welcome everybody.  It's lovely to see you all here.  I'd like to formally begin this morning's session on the right to be forgotten rulings.  It is the first of two workshops.  The second one is workshop 142, this afternoon.  This is workshop 31. 

     We have entitled it "the right to be forgotten rulings and their implications."   And I have an extremely expert and diverse panel here.  We also will be having an interactive session.  So I just want to warn everybody who is sitting in the room that you'll be forming breakout groups in the second half.  Okay?  So just to warn you.  And that will take 20 or 25 minutes.  But I'll explain the format shortly. 

     My name is Marianne Franklin.  I'm Professor of Global Media andPolitics at Goldsmiths University of London in the UK.  I'm here representing the Internet Rights and Principles Coalition, and as Chair of the GIGANET network.  But we are here to discuss what the particular rulings that have been given the name "the right to be forgotten" mean for a number of concerns.  And it's a set of rulings, not just one ruling, a set of rulings around the world that pretty much resonate with the social, cultural, the political, the economic and the technical aspects to Internet governance.  So all the aspects are implicated in how judges are ruling and how people are descending what happens to content and how content is linked. 

     So this particular workshop discusses the legal, technical and societal implications of these decisions in the European Union and elsewhere, particularly for Internet design access and use. 

     Now, this workshop this morning will focus on the proposal and legal implications of such rulings.  It's part, as I said, of this cross collaboration with workshop 142, which will look at specific case studies from around the world. 

     Now, in this workshop, we will be addressing challenges arising from terminology, implementation and due process.  For first, the legal applicability or inapplicability within and beyond national and regional jurisdictions. 

     Number two, commercial and technical challenges of implementing a ruling. 

     Number three, the societal implications for the public interest when hyperlinked online content is delinked or delisted so again terminology will be in effect in our discussion. 

     Human rights implications include Freedom of Expression, the right toaccess to information, privacy and personal data handling, and accountability issues. 

     Specific issues as you say apart from terminology will be who decides, in what context and by what process.  What content and which actors gain or lose from such rulings?  And do these decisions account for overlaps between private/public figures and their lives?  And we will be looking at details.  We will talk about how to delink what a database is or is not.  Ownership control of logs, and how the capabilities may be misused or misunderstood. 

     Okay.  And of course we are dealing with limits and applications, so as not to harm access to information.  Issues around how we keep the historical record complete and not distorted.  And issues across history about how sometimes the sorts of rulings may in fact unwittingly obscure the means by which accountability for past human rights violations can be substantiated.  So an enormously complex area.  It's a new area for debate. So welcome for joining us in this. 

     There are four objectives, and I need to say this several times because it's part of your breakout group exercise.  The first objective is to agree in some way on a clearer precision from the above points and just create more precision in that particular area of these discussions. 

     Secondly, to try and outline a set of judicial principles if possible of implementing these decisions.  

     And to make recommendation for future rulings, if your breakout group is feeling brave enough. 

     And number four, to decide on a more appropriate name for such decisions.  Are the decisions about the right to be forgotten?  Is this the right name?

     So for the first half we will have opening statements from the panelist, about 20 or 25 minutes, with some discussion.  And then we will have the breakout group in the second half.  And our panelists agreed to be Rapporteur for the breakout groups.  So they will be working with you all around the room, to look at those four objectives, which I will repeat.  Then we reconvene for reporting back briefly.  A bit of a discussion, and then we will sum up and then it's time for coffee.  Okay?  A lot to do, but I know we can manage it. 

     Okay.  I would also like to welcome our remote participation a group of undergraduate students from Syracuse University.  The Maxwell School of Citizenship and Public Affairs at Syracuse, and they are joining us by remote hub.  And they have been extraordinarily engaged and active.  And they are here with questions and they will be taking part in our discussion. 

     So thank you very much.  Without further ado, on my right, Mr. Pedro Less Andrade, who represents the Google Corporation of Latin America.  Based in Argentina correct? 

     On my second right at the end of the table, Mr. Sergio Branco from the Institute of Technology and Society in Rio de Janeiro. 

     Next to Pedro is Mishi Choudhary, Software Freedom Law Centre in New York but also India. 

     Kelly Kim from the Open Net in Korea

     Mr. Pedro Vaca Villarreal from the Freedom of the Press.  Colombia.  

     Next to me, Mr. Hernan Vales, who is from the Office of United Nations High Commissioner for Human Rights. 

     So we have a very distinguished panel.  I'll start in order of alphabetical order.  It's the most Democratic form of hierarchy that we have.  So I'll open the floor to Pedro.  All the speakers will keep to three minutes because we have time to open up the discussion as we go.  Thank you for allowing me to be a strict timekeeper.  Pedro, you have three minutes starting from now. 

     >> PEDRO LESS ANDRADE:  I would like to give you background of what this is about.  In order to start the discussion, many of you are well aware of the judgment.  But I don't know if all of you know what is start this case.  This case was started because of the -- what you see there.  You see there, the newspapers in Spain.  That is a paper from 1998.  There is what is highlighted in red.  This is a small official publication that is mandatory by law, telling that there was going to be an action of the property of Mr. Mario Costeja.  And that happened in 1998.  Ten years laterthe newspaper decided to digitalize all its archives.  And that makes this -- this page available on the Internet and also subject to be indexed as well. 

     So this tiny announcement is what triggered all this discussion on right to be forgotten.  Remember, this is -- to publish this was mandatory by law.  You know, every time that this happened, Mr. Costeja has an issue with his taxes.  That's why his property was going to be sold by the authorities. 

     So this ended up in a court decision that, in a nutshell, basically forced search engines to start to take decisions on what should be information that should be published or what information should be publicly available. 

     And this is something that, for a private company, it's a great burden.  Because we are forced to take the role of the judiciary in this case.  We need to evaluate what is something that could damage individual's privacy or individual's data protection, but we need to balance into the public interest, and make -- an assessment whether this information is accurate, whether this information is up to date, and also it's something that you cannot do automatically, so you need to hire hundreds and hundreds of professionals to look into this, in order to assess what we do with this. 

     Just to give you an example, this is the number of requests that we receive about almost a year ago.  So this is 228,000 requests that also points to 124,000 URLs that we have to evaluate. 

     And you can see here the URLs that we have to take down or delink and the URLs that we decided not to delink, just to give you an example of the magnitude of this kind of work. 

     Okay, that is my time.  One more thing is that this also triggered different Bills in different countries.  Really, really fast.  Like weeks after the decision, we started to see different Bills in Chile also later on in Brazil or Argentina.  So this becomes also a global issue in some places. 

     Thank you very much. 

     >> MARIANNE FRANKLIN:  Thank you, Pedro, for keeping to time. 

     We will do another round.  Now I'll move to our next speaker.  Sergio Branco from Rio de Janeiro.  Your three minutes is starting from now. 

     >> SERGIO BRANCO:  So I have to thank you very quickly, Marianne, so I can make my presentation.  But I really need to thank Marianne fororganizing everything.  She is amazing.  You have no idea how great she is in organizing things.  Thank you very much. 

     I have a short presentation that I divided into three parts.  In the first one, I'd like to mention how the right to be forgotten was constructed in Brazil.  What were the cases that made people think about the right to be forgotten.  Some years ago, we have a TV showed called Rio de Janeiro direct line that was a kind of documentary programme.  And one of the documentaries was about killing of poor children, children living on the streets that happened in 1993.  And the one man was accused of taking part in this killing.  And he was considered not guilty. 

     After some years, the TV show made this documentary, saying that he was involved in the killing.  He sued the TV channel and he won because he said the story could be told without saying his name. 

     The same program after several years made a documentary about the murder of a young woman, she was murdered in 1950 or '60.  And her surviving brothers sued the program saying that the program could not mention her name, because it made them suffer.  But they lost, because the court decided that it was impossible to tell this story without mentioning her name. 

     So these are the two leading cases in Brazil about the right to be forgotten.  And after the decision Pedro has just mentioned in the European court, our Congress decided to start working on the right to be forgotten.  And there are some views of law that are extremely bad as I can show you briefly. 

     One of them says that it's mandatory the removal of links from search engines that make reference to irrelevant or outdated data, as per request from any citizen or the person related to the data.  So it's vague.  It's not precise.  And it will certainly be a problem if we legislate this way. 

     There are some others that I'm not going to read to you, but I can make it available.  And there is specifically one which is very bad, because it creates a call center for the right to be forgotten.  So social media companies and -- and Internet Service Providers and websites would be forced to create a call center to receive calls from people demanding information to be deleted from the Internet.

     So when we talk about the right to be forgotten, there are some questions that have to be addressed in order to build a possible sometimes necessary but socially possible right to be forgotten.  Some of the questions are:  Is it a new right or is it just privacy?  Iis forgetting or is it delinking?  Is it about a public or a private person?  Is there any public interest in the news and information?  Can we keep Freedom of Expression without this information?  Is the publication of information necessary?  Is it a case of what the French called like the Holocaust, we need to remember.  It's not a case of forgetting.  It's impossible to forget.  And who is responsible for the content removal?  Is it a court decision or is it a system of notice and take down?

     Well, that is everything I want to say.  And we have -- I'm from the Institute for Technology and Society.  If you want to, you can have books with the Brazil's Bill of Rights and in Portuguese a Charter of Human Rights and principles for the Internet, which is the translation of the English first version that Marianne drafted and organized the publishing. 

     So Marianne, thank you very much for the opportunity.  Thank again for all the organizational on the panel. 

     >> MARIANNE FRANKLIN:  Thank you.  Just so we don't forget.  Thank you for crediting me with writing the charter.  I would love to take that credit, but seeing that there are expert group drafters in the room, I won't dare.  So it's the Internet Rights and Principles Coalition that created the charter.  But thank you very much, Sergio, for your support and the Brazilian editions. 

     We will move to the next speaker, which is Mishi Choudhary.  And in advance if she rushes out of the room because she had another commitment.  She will rejoin us I hope, she has a double engagement.  But your three minutes starting from now. 

     >> MISHI CHOUDHARY:  Everyone knows Marianne is wonderful so I'll keep my three minutes.  Staying true to my legal train, I'll not be answering the Question as posed in the order tas posted, but it it I'll use my framing.  This is a way to be deindexed.  But now it has a wide are meaning.  I want to put out a few things first, first things, humanity has a right to learn and to teach.  Without that, there is no other right worth preserving.  The crisis of the right to be forgotten, which we are discussing here, or the right to whatever you are talking is a manufactured collision.  The only forgetting which actually happens is that Internet feels like perpetually going into a room and forgetting what you came in for. 

     Let me also get something out of the way at the very onset.  The right to be forgotten is distinct from right to privacy, due to the distinction that the right to privacy constitutes information that is not publicly known.  Whereas the right to be forgotten involves removing information that was publicly known at a certain time, and not allowing third parties to access that information. 

     Privacy is crucial in order to be comprising of secrecy, anonymity and autonomy, and this right is not about that.  And all these rights do not have to be exitible and conflict between two rights if it's not detrimental to the survival of the other. 

     The test case is the landmark ruling that came from Spain as we heard Pedro talk about.  Where the right is known as Dericho Al Vide.  That phrase carries an odd resonance in Spain.  When Francisco died, the country went through a turbulent transition to Democracy.  They were encouraged to look ahead and not to the past.  The unspoken agreement to leave the past behind came to be known as Pacto Algredo.  The manager of the Spanish association for the recovery of the historical memory said sure, it sounds great that we all have the chance to cleanse our image.  But what are the limits to that? 

     There are three main points I want to propose.  One, the right to be forgotten imposes a corollary duty to forget, and this is copyright oftotalitarianism.  

     Second, the right to be forgotten once allowed goes wild faster than an it Internet Mi.  It's as evidenced by the Cumberton intermediary rules imposed by jurisdictions, we just heard about Brazil.  In India we had to fight a legal battle.  But every day we are fighting there. 

     Third point, for those who wish to control the free flow of information, there is one unitary Internet.  And as long as virtual private networks and proxy browsing is alive, long live the free Internet. 

     In January of this year, 300 survivors marked the 70 annivesary of theliberation of Auschwitz.  What they said was it's our duty of Europe and the world to remember because of those who suffered here, because of you who survived the camp horrors.  But it's also our obligation to remember for ourselves and for our future. 

     This duty to forget is part control of the totalitarian kind, it fundamental conflicts with the Freedom of Expression.  The very sense of free speech and freedom of press.  If there is such a right, then somebody must have a duty to forget.  The effect of which is so highly described byOrwell and his New Speak.  Something that Stalin may do, but George Washington doesn't do that. 

     For the providence of this right to be forgotten, I'm not proposing a utopia.  There is the People's Republic of China or the US celebrated itsfirst amendment.  Not because US has all the answers to all the problems about free speech and expression, but they have more experience taking calculated risks in favor of free speech. 

     This also brings me to my second point, that the European ruling may not extend to social media websites, but it does not take much time for these kinds of things to go rogue, to go wild.  It's a single court decision covering 28 countries, but has already tempted many Governments, different countries, many national laws, et cetera, to now make an Internet and vulcanize it.  And people are going to have a very different access to information than we all right now have. 

     In that case, what happens to the celebrated impact of Internet, its potential to educate every brain on earth, to empower every section of the human society.  It's called leveling the field. 

     I'm told I'm out of time. 

     Sorry.  Thank you. 

     What we wanted to talk about is the unitary structure of the Internet.  That there is one Net, despite the attempts of Government, ofthe world to create the walled gardens.  This shows that this is never effective.  Anyone in European who want to use a VPN or browsing proxy can jump over the wall and find the same Spanish public records that they used to find.  As long as the US allows some content, the access to that content will be allowed in the world.  That means you'll always have access to pornography as long as the first amendment lives, which we hope for everyone's sake is forever. 

     We're living in a world where David Cameroon's policy and Ping's have the same policy, but there are experts who told them that we should not mess up of the cryptography rules for the sake of the Internet and free speech and expression.  When software freedom is ubiquitous and when the technical people hacked these rights, we will have enough privacy and also Freedom of Expression.  So this right to be forgotten, deindexed, should be buried at the onset. 

     Thanks for the extra minute.


     >> MARIANNE FRANKLIN:  The exception does not prove the rule. 

     Now I'll move to Kelly Kim.  Thank you very much, Kelly.  Your three also minutes are starting now. 

     >> KELLY KIM:  It might take four minutes.  I'll be very fast. 

     I'm disputing Professor K.S. Park.  He is the expert on the right to be forgotten. 

     Anyways, so this discussion on the right to be forgotten is very important especially in Korea, as the Korean Communication Commission is considering adopting a right to be forgotten law since the issue of Google Spain came out.  So it hasn't been particularly successful yet, but we are worried that we might become the first country to have the right to be forgotten statute -- well, like rigorous online censorship, carried out by the Korea Standard Communication System, which is taking many lawful contents down whenever it's necessary for nurturing sound examination ethics.  So our standard is vague and the morphosis used by Google Spain is irrelevant.  So that law in general defines personal information as information related to an individual and gives a data subject the power to control his or her personal data. 

     So one own's data of him or her, and they should have control over that data, it sounds good, but it's not always sustainable and compatible with respect for other's freedom of expressions.

     So, for example, InHee Kim is a lawyer.  It's a title about me and that's known to many already.  And the question is, when and under what grounds can I control this perfectly lawful data about myself that resides in other people's heads, that is not defametory and nonprivacy infringing? 

     Well, the Google Spain case was one answer to that question, which we consider more or less lousy.  One reason is that the information in the index, which was a hyperlink, was already publicly available data, which was published in this newspaper.  So applying data protection law on such information is against its original proposal, because the data protection law was meant to protect data that are not publicly available and thus within the privacy area.  So we wanted to protect privacy through a data protection law.  We should not protect people's desire to wipe out unfavorable or embarrassing information about themselves. 

     So let me give you an example on how the right to be forgotten can be abused.  So Korea became independent of 36 years in 1948.  So many Koreanpeople collaborated and exploited their fellow Koreans.  There were no government sponsored efforts to indict and bring justice to those collaborators, who number in like tens of thousands.  And many of the public figures during the colonial time, so some of them are like officers and civil servants who carried out the military logistics of the Japanese invasion through Asia, which reached as far as Myanmar.  And now there is an NGO effort to keep the Wikipedia of these Korean collaborators.  Of course, the collaborators and the descendants are contesting these efforts.  So in this case, if the right -- if we had the right to be forgotten law, in the sense of Google Spain, any links to the inside Wikipedia or the entries themselves may be required to be taken down for the reason that their past wrongdoings are now obsolete because it was more than half a century ago. 

     So we should start to talking about privacy.  And the right to be forgotten should not be applied to data that are publicly available, although it's about an individual.  Thanks. 

     >> MARIANNE FRANKLIN:  Thank you very much.  Very clear final statement. 

     I'd now like to turn to the last two speakers for their three minutes plus or minus.  Mr. Pedro Vaca Villarreal, from the Foundation for Freedom of the Press. 

     >> PEDRO VACA VILLARREAL:  Thank you. 

     Okay.  I would like to introduce the Colombian case.  It's the one where we're thinking about the right to be forgotten.  And the case is like this.  A citizen identified as Gloria asked the newspaper to remove herspecifically from an article about the arrest of several people for human trafficking.  Gloria was not convicted.  The case was closed with favorable outcome for Gloria. 

     When the Institute of Limitation expired, Gloria stated that the news Article appeared whenever she typed her name in that search engine, and caused her employment and financial difficulties. 

     How it was resolved the case by the constitutional court in Colombia?

The court found that easy access to the news article affected the citizen's right to honour.  For this reason, the court decided that when there is a favorable outcome for an individual involved in a legal proceeding, it is necessary to update information and make searches more difficult, but do not delete the information.  According to the court, the media outlet must respond to the request and if necessary delink the content from search engines, so that the information is updated and remains online, but cannot be accessed through search engines. 

     This rule does not apply for people with a high public profile or public servants or in cases of crimes against humanity or human rights violations.  Taking into account that this criteria might be contradictory with the case because we are talking about human trafficking, that it's considered a human right violation. 

     We worked with press freedom issues.  So this is for us -- I mean, it takes into account like two legal challenges, let's say.  The first one is that we should take into account longstanding legal debates on the tensions between Freedom of Expression and other rights.  I'm a little bit discouraged when judiciary is taking these cases, they are like creating new rules, regardless of the long time debates about the tensions between -- I mean, it's normal tensions between Freedom of Expression and the rights, children's rights, freedom of information, freedom of opinion, et cetera. 

     The name, "right to be forgotten," seems to ignore aspects such as public interest, the right to memory, very important in countries with armed conflict, like many, or free flow of ideas.  Societies might have made an effort to recognize that this agreement is okay in a Democracy and the right to be forgotten -- I mean, talking about the Article speaking without reference to any specific case, is a justification for enforcing a single Point of View where those who want to forget, be forgotten, impose a collective public admission on those around them on an issue that may be of public interest. 

     Behind the cases involving the right to be forgotten, there are initiatives that for years have been fighting for certain rights.  I defend the right to Freedom of Expression, but there are people who defend children's rights, and that's okay.  The various communities taking part in this debate must encourage discussion and be willing to discuss and assess the difficult cases that maybe arise. 

     The greatest risk is based on one particular case.  If we let that particular case become a general rule, maybe implemented, that prioritizes a set of rights over another.  It's essential to be willing to convince and be convinced on a case-by-case basis.  The impartiality of Judges has never been as important as now. 

     >> MARIANNE FRANKLIN:  Okay.  Good.  Thank you very much.  Pedro, very important points. 

     So I turn to the last speaker for the first set of statements.  Hernan Vales from the UN High Communication for Human Rights.  Thank you very much. 

     >> HERNAN VALES:  Thank you, Marianne.  My three minutes I would like to make three points.  The first one will be about the current situation on the right to be forgotten.  The second point will be about the right to know the truth, which is alluded somehow, many times.  But it's not really developed a lot, at least in the things that I have read.  And, finally, I would like to make reference to the need to always have a Judge while we are making the decisions about the right to be forgotten. 

     So about the first point, the current situation.  When researching a bit the issue, I was struck by the confusion that is out there.  There are different draft laws and there are laws that are being approved.  For example, the law in Russia.  And there are different decisions in different jurisdictions.  And they all side and seem to be inspired in the Costega case, but they don't necessarily follow.  Which is not necessarily a bad thing, don't get me wrong.  But my point is there seems to be a confusion that might need some kind of guidance. 

     For example, there is some legislation from Chile or in Russia or decisions that make intermediaries liable.  Some decisions make them not liable.  Some decisions say past records are important and cannot be forgotten.  Some others don't.  Some require a court order or expert opinion, some jurisdictions don't.  So there is a lot of different opinions out there.  And that before, as Mishi said, before this right to be forgotten goes rogue, it might need some kind of parameters on how we should work. 

     The second point is about the right to know the truth.  I think we all know that this has been alluded to by other speakers as well.  Historical information on gross human rights violations is very important.  It's important to prevent the violation from being forgotten and to not let them ever be repeated.  This is heart of human rights and has to be recognized in a distinct right.  The right to know the truth or the right to know or the right to memory.  It has different names.  They all mean the same. It's part of human rights law and it has been recognized in several International instruments, likely in the intervention support for disappearances. 

     It involves the public at large and relatives to seek information about the Commission of a human rights violation.  One aspect, it's a selective right and it assures that society has access to information about its past, information that is essential in Democratic systems.  And if I may quote the interAmerican Court of Human Rights, the court said "Every society has inalienable right to know the truth about past events."   It cannot be so clearer than this. 

     A second aspect is that it's also a private right.  It's a right of victims and relatives, and in this regard it affords a form of compensation.  It's also a way for victims to get closure, for victims -- for people to acknowledge what happened to them.  That is a form of compensation, and this has also been recognized by the cases. 

     So what is my concern?  The concern is as the ruling starts developing very quickly, the right to be forgotten starts developing quickly, it might happen that we might have uncontrolled erasure of information.  And this will negatively impact the right to truth and accountability.  We will not be able to take people to court.  This is not about past events.  There are events happening in Burundi and in Myanmar, so it's current, it's not only about the Holocaust or the dictatorships in Latin America. 

     Finally, am I doing fine for the time?  Okay.  Finally, let me underline finally, I said I wanted to say why the involvement of a Judge is important.  I mean, not all cases related to the right to be forgotten may involve gross human rights violations and be in contradiction to the right to know the truth.  But all cases will have an impact on Freedom of Expression.  Freedom of Expression can be restricted for the protection of the rights or reputation of others.  But to do that, we have to follow a three part test.  In particular, there is a tricky part of the test.  One is proportion A.  It needs to be done by a Judge or by a trained qualified ombudsperson.  This is not for a private company to do.  So I think the decision of, in the Costega case, in this regard was mistaken. 

     That's it. 

     >> MARIANNE FRANKLIN:  I'm looking at the clock here, it's running just under 50 minutes.  I have a feeling that we have expert and knowledgeable people in the room.  I can see -- I would like, if that is okay with everyone, if we go to the breakout groups now.  Because then we have time to come back and do some more statements.  Is that okay? Yes. 

     Allow me to explain how it's going to work.  We will just break it quickly into six groups.  I'll define the group according to where you're sitting in the room.  So if you want to get out of here, do so now.  We said we have four objectives.  But I have a feeling that we might need to just try to focus on two for the purposes of the discussion.  But, of course, you can ignore my suggestions.  The four objectives are on the workshop outline on the schedule.  The live schedule.  But I thought perhaps it's about actually brainstorming a more appropriate name for these sorts of decisions; for the sake of figuring out what it is that we're actually talking about really, given the comments that we have just had. 

     And, secondly, if possible, to come up with one or two recommendations following on from our speakers for future rulings by this given new name.  All right?  That might be more than enough.  Would people agree?  Of course you can ignore that and just talk about something that is relevant.  And then our speakers are going to be Rapporteurs for the groups that they are moderating. 

     Okay?  So I'm thinking we have to get some -- 20 minutes maximum.  So this is how I'm going to do it.  This first half of the room, up to the gentleman in the green shirt, Sergio will moderate.  Just gather and stay where you are.  Then from his left into the corner theret that will be Kelly.  Okay?     And then the last half of that back section will be Hernan.  The back part.  So one, two, three.  And then we're to Milton or up to, say, Rikki, and behind her is five.  People are leaving the room. And that will be Pedro.  And six, Pedro will take the section in back.  20 minutes, brainstorm and come back.  This is a way we can break open the discussion and keep you awake.  You might have to release yourselves from the screen. 

     Thanks for joining.  We will come back in 20 minutes.  Just huddle around.  Do you think we can manage that?  Thank you for trying it out. 

     (Breakout session for 20 minutes. 

     >> MARIANNE FRANKLIN:  Hi everyone.  Sorry to interrupt.  If you could wrap it up and reconvene with the seats back in the places where they were before, please. 

     Time.  Time. 

     Group Moderators, could you wrap it up, and could we reconvene, please.  Pedro.  Please return the seats to the original positions, because our room monitors are extremely concerned about this.  We need to respect that rule.  Thanks everyone. 

     Are the seats all back in the original position?  Okay.  We have 15 minutes to hear back from the groups.  Okay. 

     Right.  Thank you very much.  That was such a great energy in the room.  You were impressive for me.  I've taken some photos.  Do I have people's permission -- if you think your photo has been taken by me, please come and tell me if you do not wish it to be up there.  Because it will never be forgotten. 

     Right, we're going to start now.  We have 15 minutes or so, maybe 20 minutes max, so you can all get to the next session.  Is it 10 to 10:30 this session or 10:45.  Until 10:30. 

     And the Rapporteur, formerly known as the panelists, will report back in brief bullet points the main outcome of the discussion.  Remember, we're not trying to resolve this this morning.  We're trying to change the conversation and get more precision about what we're talking about. 

     So beginning with Sergio, your group, please. 

     >> SERGIO BRANCO:  Thank you, Marianne.  It was an amazing -- tough, but an amazing experience.  And, well, the group couldn't even decide if there was such a thing as the right to be forgotten.  The majority thought that in some circumstances we could claim this right to be forgotten.  But five people were completely against the possibility of such a right.  It shouldn't exist at all. 

     But considering the people who believe that there is such a thing as the right to be forgotten, three things -- two or three things were very important.  First, if there is such a right, it's the court decision. The court is the only entity to have the power to remove the content from the Internet.  We should not privatize this duty.  So private entities such as Google or any other website would not be the entities to address these requirements of removal. 

     Second, the relevance of the information is the most important thing for us to evaluate when there is the claim to remove the content. 

     Another problem would be the territory, the extra territorial enforcement of decisions, which really is a problem. 

     And, finally, we discussed the name and we agree that the name -- "the right to be forgottenis not the best one.  It should be "the right to be deindexed or delinked."  But not "the right to be forgotten." 

     It was how far we could go.  Thank you. 

     >> MARIANNE FRANKLIN:  That sounds like a very long way.  Thank you very much. 

     Moving to Kelly's group.  What did you come up with?  Thank you. 

     >> KELLY KIM:  Just in one word.  Complicated. 

     So we discussed -- we spent most of our time on finding the appropriate name.  And I think we have found one, the best one was like"right not to be found on the intermediaries."  I don't know what others in the room think about this new name we came up with. 

     And we talked about the right to be deindexed or the right to be delinked or the right to be erased.  There was a comment on the right to be erased, that it's very insulating.  Because the information is existing somewhere online and can be found.  So the right to be erased should be crossed out. 

     And the right to be deindexed, you know, and there was an opinion that it's only the index.  If the name is used as a key word, so you can just find the person -- I mean, find the information by using other key words.  So even "right to be deindexedis not that appropriate.  So "right not to be found," we reached an agreement on "right not to be found on the intermediaries" as our appropriate name for the "right to be forgotten."

     And there was a comment on the Argentinan case, where they requested Google and other intermediaries to delink pornographic contents which she had taken when she was like a minor.  The interesting thing is that nothing can be found online about her.  If you search her name online, or on Google, like nothing is found.  No images found.  So it was interesting. 

     And there was another interesting discussion on the new generation kids -- kids like whose photos or information is posted online on Facebook and Twitter by the parent.  What kind of rights should be given or recognized for them?  But like we didn't reach an agreement on whether the right should be recognized, but it was very interesting. 

     And recommendation for future rulings.  Well, we definitely think that judicial review or intervention should be required.  And local information or publications should be reviewed. 

     That's it. 

     >> MARIANNE FRANKLIN:  Thank you very much.  This is all going up on the transcript so people can refer to it.  I want to note that the Syracuse University hub will also be reporting from their breakout discussion in upper New York state.  And we may have an intervention with Julia Powles.  She tolme that we forgot something.

     >> HERNAN VALES:  In terms of the name, we thought that the right to be forgotten is a name that caught up in the media easily.  But theacademic world that is not using it.  They are using delist.  I asked if delinked was better, but I heard that delisted was better. 

     There are caseand cases about the right to be forgotten.  Some are easier, some are more complicated.  But in this complicated world that we live in, one person was making this point of it's difficult to find out now who is a public person.  And we used to have people that were prominent and public and in power and people who were not.  Just common people.  But now the distinction has a little bit -- it's not so clear anymore, which complicates things for deciding whether information is in the public interest or not. 

     Another point we discussed was the right of delisting versus amending.  Some people were of the view that sometimes by amending the information that is in the original information, that would be enough.  You don't need to take links out. 

     We also agreed that in principle, it shouldn't be search engines having to take down this information, but somehow warned or at least raised the issue that courts are slow.  And they posted the question of whether they would have a capacity to react in a meaningful time to these kinds of requests.  Thank you. 

     >> MARIANNE FRANKLIN:  Pedro and then Pedro. 

     >> PEDRO LESS ANDRADE:  Okay.  So very active discussions, thanks for the group.  It was very, very inviting.  First of all, we identified that we need to separate this concept of right to the index versus the deleting of the content.  We see that delinking is leading a lot towards content removal.  (Technical difficulty)

And sometimes we informed judicial decision that ended up removing content that might be good for the public. 

     Also, mentioned other things like the Bill of Rights to be forgotten.  That provides also extending the right to be forgotten, not only by the search engine but to websites.  It is clear that there is a problem.  There are people suffering for this, and that such a large amount of requests that search engines receive on this issue is an evidence of that. 

     We all agreed that this problem needs a solution.  But we have seen that we don't agree with the implementation that the ruling set for it.  And we think that this is not the best way -- we agree that this is not the best way to implement the solution to this problem. 

     It also was pointed out that -- and it was a question, whether this ruling also imposed an obligation not only to delink false information, and whether it is difficult or easy for search engines to decide what is false or what is true. 

     We, in that regard, we also pointed out which was the guideline even by the court, about what should be delinked.  And it's about information that -- it's -- just, sorry, I want to read this. 

     Information that should be erased.  It's sufficient.  Relevant, irrelevant, or expensive.  That then in terms of the implementation of the Resolution of that problem, there was agreement that the ideal way would be through the judiciary on this decision-making of this.  Though it always -- it also was pointed out that in order to get faster solutions, could be have administrative authorities have a mandate so they could resolve the issues in a faster way?

     And last, we also discussed about the naming.  And we agreed -- we agreed that maybe "delinking" is a more accurate term for this.  However, the "right to be forgotten" shows the impact that this could have on other human rights involved.  So, technically, the "delinking" is more accurate, but in some point it diminishes, which is an impact that this has on other rights.  Because it reducethe question to such a technical thing.  So that is it. 

     >> MARIANNE FRANKLIN:  Final reporting back, because we have Syracuse and also have some points that need to be raised via twitter from Julia Powles. 

     >> PEDRO VACA VILLARREAL:  I'll go quickly.  There was discussion.  I just think that the -- I believe that there is not a right to be forgotten.  But there is attention and some specific challenges to resolve it online.  And talking about how to name is it delinking or delisting.  I don't know if I'm missing another concept. 

     About the claim, in those specific cases, we talk about the demonstration of real ongoing harm, and also to demonstrate in which jurisdiction is it relevant.  We talked about the -- that there is some cases, I mean, about personal data and the case in the Colombian tribunal.  And other issues, that there are Internet companies removing contents and fight against the right to be forgotten.  And someone suggested that it's probably a contributory position on the same topic.  Because of the time I think it's better to be short. 

     >> MARIANNE FRANKLIN:  Thank you very much. 

     Now, we have about eight minutes left, which is time to hear from the Syracuse remote hub.  Do they have any points they wish to bring to the table?

     But before then, I'd like to ask Julia Powles, who has been active from Australia.  She just wrote a brief note for the record, the lateCaster Bouden was going to join us.  So this is the panelist in the spirit of Casper, and Julia wants to intervene at this point.  So read her points out and we will cut to Syracuse.

     >> JULIA POWLES:  I got a direct message from Twitter with three points from Julia Powles, from the University of Cambridge.  She says one, Pedro of Google talks of the great burden requires hundreds and hundreds of professionals.  How many people are working at Google on this.  Note to everyone, Google is opaque about the processes and anything more than gross statistics.  Once you consider the acceptance rate has been stable over time, it suggests decision-making by quota. But it's disengous just to say it's is a burden and not to say how and why it's a burden.  And then say privatize decision-making and then make it opaque. 

     Concern about precedent setting.  Totalitarian don't need precedents.  Google doesn't -- what precedent do citizens have apart from cases fromresurecting a shred of privacy online.  The emphasis of Hernan and Pedro of free press and gross human rights violations and the Freedom of Expression show how problematic it is that we are not facing the reality of the actual right to be forgotten request.  The vast majority, and that is 95 percent, on the basis of leaked info, of which a request to obscure someone's medical information, childhood embarrassment and so on -- and that's it. 

     >> MARIANNE FRANKLIN:  Thank you, Julia and Casper.  Syracuse, they have brief points to make.  Syracuse students, anything from them or they might be talking. 

     Can't hear you. 

     > (Off microphone.)  The right to be applied, so we think that there might be a variety of names that might be spread globally.  And that may be instead what is needed is a more comprehensive suite of rights which could be applied on a more case-by-case basis, which we think could be an interesting option to explore. 

     But with very limited time, those were our conclusions from the breakout.  And again, we thank you for the invitation to participate. 

     >> MARIANNE FRANKLIN:  Thank you.  If you have more to offer, perhaps you can send them through so we can have them in a text form.  Thank you very much. 

     Now, we have five minutes remaining.  I'm hearing from the floor that a lot of people have some points they want to raise.  But I think to respect time and the next panel that has to begin at 11, which I have to be in, and I've been told I'll be told off if I'm not there on time, and we all need coffee.  I'd like to ask our panelists to, in one sentence, one sentence, Mishi, welcome back.  One sentence, provide a take away for us.  And those of you who have specific comments to panelists are welcome to come up and talk to them directly. 

     And we will continue this conversation this afternoon in 142.  But we will start with Pedro, first.  And go the other way.  And if Mishi can think of one sentence, so that you can just get a sense, not right away,because you have just come in.  Pedro, one sentence.  Your take away. 

     >> PEDRO LESS ANDRADE:  We acknowledge it's a problem that people are suffering.  It's clear that we are not dealing with the right way to solve this problem, and there is a lot of room for improvement here, and to find other ways that balance better all the different human rights involved in making a solution for these issues. 

     >> MARIANNE FRANKLIN:  That was Pedro speaking on behalf of Google, correct? 

     >> PEDRO LESS ANDRADE:  Correct. 

     >> PEDRO VACA VILLARREAL:  I would like to suggest a hypothesis.  Close to cleaning out issues, more than other cases, if a society agreed that people who break the law are sentenced to, for example, four years of prison, this must be the only applicable social answer.  Finding information and discriminating against someone who has through a legal proceeding entails extending (inaudible) beyond what society has agreed.  I have my doubts about whether the conversation or to delete negative information about a person on the Internet contributes to understanding as a society the scope of censor. 

     >> MARIANNE FRANKLIN:  Kelly.  One sentence for take away? 

     >> KELLY KIM:  Well, the Google Spain decision allows it, and I think everybody has agreement on that point. 

     And this is a -- they didn't consider how the conversation could be abused in less Democratic or less Developed Countries.  So that wasdisappointing

     >> MARIANNE FRANKLIN:  Mishi, one sentence. 

     >> MISHI CHOUDHARY:  It can have parts and phrases. 

     >> MARIANNE FRANKLIN:  Lawyer!  One with lots of commas. 

     >> MISHI CHOUDHARY:  So when free speech and expression are enabled by private players, things are different than when it was just the state.  So we will have a lot of hiccups, et cetera, but we have to be watchful because this can lead to censorship by proxy.  And also burden on a private player, which should be left to the courts of each jurisdiction. 

     For this right to be forgotten, I hope it gets forgotten by more speech, which will ensure that optimization or deoptimization of search engine results are done by more speech than by more erasures. 

     >> MARIANNE FRANKLIN:  Thank you. 

     Hernan?  The commissioner for human rights. 

     >> HERNAN VALES:  Can it be like one paragraph instead of onesentence? 

     >> MARIANNE FRANKLIN:  One sentence.  Two commas only. 

     >> HERNAN VALES:  A right to be delisted, obviously it has merits.  But it needs to be further discussed and delineated.  We have to find criteria for applying the right.  For the proportionality test, exploring the meaning of irrelevant, inadequate and excessive information.  And in this regard I wanted to say that it's always in the public interest to be able to access information about human rights violations.  Information about past violations, knowing the truth is essential for allowing impunity.  It allows closure and is a vital step in preventing the occurrence of events that led to the things in the first place. 

     >> MARIANNE FRANKLIN:  Sergio.  Final comment? 

     >> SERGIO BRANCO:  Well, I think to reach consensus is absolutely impossible in this subject.  But if there is a consensus, I don't think -- it's not even in the position that everything should be erased.  Nor that nothing should be erased.  Because I think we have to protect society and its memory and history.  But we also, in certain cases, need to protect human people and their privacy.  And, in the words of Professor Hodata, the relevance of the information that is available.  So I think the middle ground is where we -- if we cannot find consensus -- is where we can find a best solution. 

     >> MARIANNE FRANKLIN:  With that.  We now rechristen these rulings, rights to be delisted, delinked, deindexed, and to be remembered for those new issues that we are broaching. 

     Thank you very much everyone.  You've been fabulous.  Good-bye and enjoy your coffee, see you this afternoon.


     (End of session 10:40)