Internet harassment: Caplan v Atas

Internet harassment

“The prevalence of online harassment is shocking. In Canada, as of October 2016, about 31% of social media users were harassed. Studies on the effects of cyber harassment show the potentially devastating impact of these attacks”. These were findings in the recent case Caplan v. Atas, 2021 ONSC 670 in which an Ontario court held that the tort of Internet harassment and new online enforcement remedies should be recognized as essential tools to combat cyber-stalking and other forms of Internet harassment.

The decision in Caplan starts with this stark assessment of online harms:

Freedom of speech and the law of defamation have developed over centuries to balance the importance of preserving open public discourse, advancing the search for truth (which must allow for unpopular and even incorrect speech), protecting personal reputations, promoting free democratic debate, and enforcing personal responsibility for statements made about others. The value of freedom of speech, and the need for some limits on that freedom, have long been recognised as central to a vibrant and healthy democracy and, frankly, any decent society.

The internet has cast that balance into disarray…

The Caplan decision also highlights the reasons courts should be able to adapt the common law to provide novel remedies tailored to new and serious online harms:

…it is clear that the law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic “marketplace” of “ideas” in a world with near universal access to the means of mass communication. Regulation of speech carries with it the risk of over-regulation, even tyranny. Absence of regulation carries with it the risk of anarchy and the disintegration of order. As should be clear from the discussion that follows, a situation that allows someone like Atas to carry on as she has, effectively unchecked for years, shows a lack of effective regulation that imperils order and the marketplace of ideas because of the anarchy that can arise from ineffective regulation.

The facts

Readers are invited to study the facts of the cases in issue which are set out in depth in the court’s reasons. The flavor of what occurred was set out by trial judge as follows:

These cases concern extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal. Nadire Atas, has used the internet to disseminate vicious falsehoods against those towards to whom she bears grudges, and towards family members and associates of those against whom she bears grudges. Atas is destitute and apparently content to revel in ancient grievances, delighting in legal process and unending conflict because of the misery and expense it causes for her opponents.

Cyber-stalking is the perfect pastime for Atas. She can shield her identity. She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice. Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour…

Atas has carried on systematic campaigns of malicious falsehood to cause emotional and psychological harm to persons against whom she has grievances. These include adverse parties in litigation, Atas’ own lawyers, and the lawyers and agents, relatives (including siblings, spouses and children) of these people, a former employer, its successor, owners, managers and employees of this former employer, and generally an ever-widening circle of victims, generally chosen to cause misery to Atas’ prime victims, those against whom she harbours festering grievances. As of the time that these motions were argued, there have been as many as 150 victims of Atas’ attacks.

The postings were disseminated on the internet anonymously, pseudonymously, or by using false names. The postings were on sites such as WordPress, Ripoff Reports, Reddit, Pinterest, Lawyerrating, Blogspot, and “dozens of other less well known sites such as “cheaters.com” and “reportcheatingonline””.

For a more detailed account of the facts, see the recent article in the New York Times, A Vast Web of Vengeance by Kashmir Hill.

Recognition of Internet harassment tort

Justice Corbett’s decision makes clear how serious Internet harassment can be for its victims.

Online harassment has a unique effect on those who have been subjected to it, both in regard to their mental health and in regard to violations of their legal rights. Research suggests that online harassment effects are like the effect of harassment that occurs physically or verbally. For example, harassment, regardless of whether performed in person or online, can make victims “develop a variety of psychological, as well as somatic, symptoms”.

However, online harassment differs from other forms of harassment because it is an unstoppable intrusion. Perpetrators of online harassment do not allow their victims to escape their harmful action by entering their home or private domain. The victim cannot escape the harassment in the haven that is his or her own home. Moreover, the perpetrator can perform the harassment from anywhere remotely.

A 2014 study found that forty percent of victims of online abuse suffered damage to their self-esteem. Additionally, thirty percent of these victims reported a fear for their lives. This abuse can have such intense ramifications that twenty percent of these victims reported that they were even afraid to leave their home. Furthermore, victims of online harassment like cyberbullying face a high risk of depression, anxiety, and may increase the risk of the victim harming himself or herself. Most distressingly, cyberbullying victims were about twice as likely to have attempted suicide than those who have not been harassed in this manner. However, the victims of online harassment are not the only ones to suffer negative mental health effects from the behavior. The harassers themselves suffer from a variety of negative mental health effects. Cyberbullying offenders are more likely to have attempted suicide than non-performers. In conclusion, online harassment is an epidemic.

The plaintiffs asserted various causes of action against Atas. The judge found for them on the grounds of defamation, but concluded that the existing cause of action for “intrusion upon seclusion” recognized in Ontario did not apply. He also found that the tort of intentional infliction of mental suffering was inadequate to address Internet harassment.[i]

The court reviewed the developments in other jurisdictions such as the U.K., New Zealand, Manitoba, and Nova Scotia which enacted laws specifically to address certain forms on Internet harassment.[ii] After doing so the court concluded that the tort of Internet harassment (which exists under U.S. law) should also be available under Ontario law. Justice David Corbett explained the rationale for the development of the law as follows.

Atas has engaged in a vile campaign of cyber-stalking against the plaintiffs in the four actions, the goal of which has been retribution for longstanding grievances… The law should respond to this conduct to compensate victims, to express the law’s disgust and firm rejection of the conduct, to punish for wrongful conduct, to deter Atas and others from this sort of conduct in future, and to bring Atas’ wrongful conduct to an end…

Compensation, though usually a primary goal of the civil justice system, is not available from a person such as Atas…

This leaves two closely related goals: specific deterrence and preventing Atas from continuing or repeating this conduct…

Online harassment, bullying, hate speech, and cyber stalking straddle criminal and civil law. Harmful internet communication has prompted many jurisdictions to amend or pass legislation to deal with the issue. The courts too have been challenged to recognize new torts or expand old ones to face the challenges of the internet age of communication. The academic commentators are almost universal in their noting that, while online harassment and hateful speech is a significant problem, there are few practical remedies available for the victims…

The law of defamation provides some recourse for the targets of this kind of conduct, but that recourse is not sufficient to bring the conduct to an end or to control the behaviour of the wrongdoer…

In my view, the tort of internet harassment should be recognized in these cases because Atas’ online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery. The social science literature referenced above makes it clear that real harm is caused by serial stalkers such as Atas…

Often courts are not in the best position to address complex new legal problems. As my brief review of legal developments in this area shows, this is a developing area of the law, legislatures have tried to fashion responses, and the issue has been under active recent consideration by the Law Commission of Ontario. It would be better if changes in this area of the law came from the legislature rather than a trial judge.

However, the facts of the case… are much closer to the situation in which the Court of Appeal recognized the tort of intrusion on seclusion, Jones v. Tsige, in which Sharpe J.A. stated: ““we are presented in this case with facts that cry out for a remedy”. As I said at the outset, the law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct…The concept of “harassment” as wrongful conduct is known to the law and is a social ill.

Justice Corbett, without expressly adopting the U.S. formulation of the test of Internet harassment, summarized the elements of the cause of action as follows:

The plaintiffs propose, drawn from American case law the following test for the tort of harassment in internet communications: where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

He then, as did the Court of Appeal in the Tsige case, cautioned that the tort is meant to address egregious situations stating that the tort applies only to “the most serious and persistent of harassing conduct that rises to a level where the law should respond to it”.

Remedies

The plaintiffs in Caplan asked for an array of remedies including an order compelling Atas to remove all offending online content and hyperlinks and cease all further posting. The plaintiffs also asked for an order giving them the right to remove or request the removal of the offending content themselves. As for the latter order, the plaintiffs asked for this novel order:

An order that upon the want of compliance by the defendant with the relief sought in the Judgment and Orders sought, that the right, title, interest and ownership of the defendant in the Offending Statements, postings, internet and email accounts as listed in Schedule ‘B’ to this Factum be and the same be transferred, without recourse, to such amicus curiae, independent supervising solicitor or expert so appointed by the Court in order to perform the removal of the Offending Statements and postings listed in Schedule ‘A’ to this Factum.[iii]

The court accepted that the court could order a defendant to remove offensive content on the internet.[iv] However, the court doubted such an order would be effective in the circumstances for a variety reasons including that the defendant would be unwilling or unable to carry it out. Accordingly, the court decided the alternative order proposed by the plaintiffs should be granted, namely, “vesting title to the postings in them, with ancillary orders enabling them to take steps to have the content removed”.

While the scope of the court order is still to be settled by the court, the court stated it was prepared to grant an injunction not only in favor of the plaintiffs, but also “with respect to all plaintiffs and other victims of her defamation and harassment, together with their families and related persons, and business associates”. The court reasoned that an “order that is limited in its scope to persons who have been harmed already would not prevent Atas from shifting her focus to a new set of victims associated with her primary victims. The cycle could be endless.” Also, Justice Corbett saw “no reason why primary victims should not be able to take the lead in bringing this conduct to an end and then to ask the court to extend protective orders to all who have been besmirched by the perpetrator’s campaign of harassment, and a wider circle of potential victims against whom Atas might turn her sights in future.” Last, the “overall history makes it clear that Atas must be ordered to leave the plaintiffs alone, and that the order must be framed broadly to ensure that she does not do indirectly that which she has been restrained from doing directly.”

Comments

There is a long history of courts adapting the common law to, as the Supreme Court recently reconfirmed in Nevsun Resources,“keep the law aligned with the evolution of society”. The Caplan case follows a series of cases in which the courts recently adopted new torts to deal with invasions of privacy. The decision of Justice Corbett forcefully makes the case for the development of the tort of Internet harassment.

Just as the courts have been evolving the common law causes of action to address online harms, the courts have also been adapting their broad equitable powers to fashion new remedies in an attempt to address different types of online harms. For example:

  • In Equustek, the Supreme Court of Canada confirmed the equitable jurisdiction of the common law courts to make global de-indexing orders against search engines to prevent access to products made using stolen trade secrets.
  • In GoldTV, the Federal Court ordered Internet Service Providers (ISPs) to block access to foreign sites that made pirated content available to Canadians thereby undermining markets for legitimate subscription broadcasting services.
  • In Parsons, the Federal Court recently issued an order transferring to an applicant whose trademark was infringed “ownership and all rights of access, administration and control for and over” [a] domain name “together with any other domain name registered to the Respondent containing PARSONS or any confusingly similar trademark, and shall otherwise take any and all further steps necessary to complete such transfer in a timely manner thereafter, including directing the applicable Registrar(s) to transfer ownership and all rights of access, administration and control for and over all such domain names to the Applicants.”
  • In White (Beast IPTV), the Federal Court issued an interim order in an anti-piracy case, requiring the defendants to transfer the control of the infrastructure of the allegedly infringing IPTV Service to prevent the defendants transferring the ownership or control of the service outside of the court’s jurisdiction and to avoid hollow judgments. The order permitted the plaintiffs’ computer forensic experts to log into the accounts and servers using the defendants’ credentials; to modify the login credentials for the accounts and servers; to deactivate any domain, subdomain, server or service associated with the accounts or servers; and to transfer control over the accounts, domains, subdomains and servers to independent supervising solicitors as custodians.[v]

Caplan represents another adaptation of the equitable powers of the courts to fashion remedies to address new and serious online harms.

It is unlikely that even with the broad remedial rights accorded to them under the court’s proposed order, the plaintiffs will be able to get all of the offensive content removed from their online locations and to stop the Internet harassment content from proliferating to other online locations. Doing this is, as one U.K. court put it in a case involving Max Mosely, “a Sisyphean task” as “even when a number of sites are blocked, many remain and some appear anew”.

If the assignment in respect of the postings includes an assignment of copyright, that could be used to send takedown notices under the U.S. DMCA. An additional remedy that could prove more effective, at least against sites, pages, or accounts not controlled by Atas, would, be to obtain an Equustek order requiring Google and other prominent search engines to de-index specific URLs or content wherever it may pop up, if the search engines will not agree to do so voluntarily. Max Mosely obtained de-indexing orders in France and Germany to require Google to block access to photos that breached his privacy rights. It was the only way for him to get any semblance of Internet justice.[vi]

The plaintiffs might also have had remedies under PIPEDA to obtain orders that the sites hosting the offensive content remove or disable access to it, at least to the extent they contain personal information, albeit inaccurate personal information about them. Some hosts in the U.S. will abide by these orders, even if they might have a defense to doing so under s.230 of the CDA. There is an unresolved question under PIPEDA as to whether it applies to search engines and could require them to de-index illegal search results containing personal information. There is a reference in the Google case to determine these questions.

Section 55 of the Consumer Privacy Protection Act, the draft Bill to updated and replace PIPEDA, would give individuals a right of “erasure” (called “disposal” under the CPPA) to require organizations to permanently and irreversibly delete personal information they have collected from individuals, subject to certain exceptions. There are some views, such as those of Prof. Scassa,[vii] that the right would not extend to the so called “right to be forgotten” first recognized in the European Union in the Google Spain case, and later enshrined in the GDRP and recognized by the Court of Justice of the European Union in several subsequent decisions. However, the CPPA, like the GDPR, arguably creates a general right to require the deletion of personal information which could have the effect of creating a “right to be forgotten” in Canada.[viii] One might expect that when (and if) the CPPA is enacted that the “right of disposal” will also be tested in future case of Internet harassment and other cases.

  • For more on the case, read the blog post by McCarthy Tetrault lawyers Gillian Kerr, William Main, Charlotte-Anne Malischewski and Pippa Leslie.

* After the decision was released Ms. Atas was charged with crimes including harassment and libel. See,Woman Accused of Defaming Dozens Online Is Arrested.

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[i] According to the Court:

The tort of intentional infliction of mental suffering is simply inadequate in these circumstances: it is designed to address different situations. The test is set out in Prinzo v. Baycrest Centre for Geriatric Care.[i] The plaintiff must prove conduct by the defendant that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness. The third branch of the test must be understood in the context of the broad range of behaviour that may be caught by the first two branches of the test. It is not part of the test that the conduct be persistent and repetitive.

I do not have evidence that the plaintiffs have suffered visible and provable illnesses as a result of Atas’ conduct. One would hope that a defendant’s harassment could be brought to an end before it brought about such consequences. To coin a phrase from Sharpe J.A., quoted by the Court of Appeal in Merrifield, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.” The law would be similarly deficient if it did not provide an efficient remedy until the consequences of this wrongful conduct caused visible and provable illness.

[ii] The Court summarized the laws enacted elsewhere as follows:

In England, after it appeared that there was some movement toward the recognition of a common law tort of harassment, Parliament passed the Protection from Harassment Act 1997, which created statutory protections and civil remedies for harassment. In 2014, the Australian Law Reform Commission recommended the passage of legislation for a statutory civil remedy for harassment. In 2015, New Zealand passed the Harmful Digital Communications Act, which created an agency to administer a complaints process and applicable remedies.

In November 2017, the Law Reform Commission of Ontario published a consultation paper entitled ‘Defamation Law in the Internet Age’. One of its working papers, entitled ‘The Relationship between Defamation, Breach of Privacy, and Other Legal Claims Involving Offensive Internet Content’ was published by David Mangan in July 2017. Both the consultation paper and the working paper include extensive reviews of the law. Since final argument of these motions, the Law reform Commission of Ontario has published a Final Report.[ii] To date, legislation has not been enacted in Ontario to address these issues.

In 2018, Nova Scotia re-introduced the Intimate Images and Cyber-Protection Act.[ii] ‘Cyber-bullying’ is defined, at section 3(c) of the Act, as follows:

“cyber-bullying” means an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or well-being or was reckless with regard to the risk of harm to another individual’s health or well-being, and may include (i) creating a web page, blog or profile in which the creator assumes the identity of another person, (ii) impersonating another person as the author of content or a message, (iii) disclosure of sensitive personal facts or breach of confidence, (iv) threats, intimidation or menacing conduct, (v) communications that are grossly offensive, indecent, or obscene, (vi) communications that are harassment, (vii) making a false allegation, (viii) communications that incite or encourage another person to commit suicide, (ix) communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or (x) communications that incite or encourage another person to do any of the foregoing.

Section 6(1) of the Act gives the Court the following powers:

Where the Court is satisfied that a person has engaged in cyber-bullying or has distributed an intimate image without consent, the Court may make one or more of the following orders:

(a)        an order prohibiting the person from distributing the intimate image;

(b)        an order prohibiting the person from making communications that would be cyber-bullying;

(c)        an order prohibiting the person from future contact with the applicant or another person;

(d)        an order requiring the person to take down or disable access to an intimate image or communication;

(e)        an order declaring that an image is an intimate image;

(f)         an order declaring that a communication is cyber-bullying;

(g)        an order referring the matter to dispute-resolution services provided by the agency or otherwise;

(h)        an order provided for by the regulations;

(i)         any other order which is just and reasonable…

In November 2015, the Province of Manitoba enacted legislation to create the tort of “non-consensual distribution of intimate images”: see The Intimate Image Protection Act, C.C.S.M. c. I87, s. 11, which came into force on January 15, 2016. No other legislature has so far passed similar legislation.

[iii] The orders asked for were:

(a)        an order in the nature of mandamus compelling Atas to remove any and all of the offending hyperlinks, postings, tweets, photographs, depictions and materials published in her own name, or any nickname, pseudonym, or alias, that she now uses, has used, with respect to the persons set out in Schedule ‘A’ to this Factum from any website. In support of the relief sought, the moving parties submit that the courts have ordered removed existing defamatory statements from the Internet.

(b)        An order in the nature of mandamus requiring that Atas issue a public retraction and apology to plaintiffs and other victims of her defamation and harassment, to be published online under the supervision of the Court at her own expense, within 30 days of the Order of the Court.

(c)        A permanent injunction barring Atas in her own name, or any nickname, pseudonym, or alias from disseminating, publishing, distributing, communicating or posting on the internet by any means, including hyperlinks or otherwise, any comment, chat, blog, statement, photograph, depiction, description, review on any webpage, or any other online platform or medium, with respect to all plaintiffs and other victims of her defamation and harassment, together with their families and related persons, and business associates.

(d)        An order that upon the want of compliance by the defendant with the relief sought in the Judgment and Orders sought, that the right, title, interest and ownership of the defendant in the Offending Statements, postings, internet and email accounts as listed in Schedule ‘B’ to this Factum be and the same be transferred, without recourse, to such amicus curiae, independent supervising solicitor or expert so appointed by the Court in order to perform the removal of the Offending Statements and postings listed in Schedule ‘A’ to this Factum.

[iv] The court referred to: “Ottawa Carleton, supra, at para. 30, and Warman v. Fournier, 2014 ONSC 412 (CanLII), But see also, Rodrigues v Rodrigues, 2013 ABQB 718 (CanLII), where the court, relying on Brown on Defamation, 2nd ed. Vol. 6, loose-leaf 2001 Release (Toronto Carswell, 1994) at p 26-55 and 26-56, refused to compel an apology and retraction from a party which was not a newspaper or broadcaster. Quaere: whether Atas is a ‘broadcaster’.”

[v] The interim orders (which were converted into interlocutory injunctions) also enjoined and restrained the defendants, by themselves or through various other persons or entities, from:

developing, operating and maintaining, promoting, providing support, selling subscriptions, or authorizing any one to sell subscriptions to unauthorized IPTV Services, including the Beast IPTV Service, that provide users with unauthorized access to cinematographic works for which the copyright is owned by the Plaintiffs;

developing, maintaining, updating, hosting, distributing, promoting or selling any software application that provides access to unauthorized IPTV services, including the Beast IPTV Service, the Beast IPTV Android Application and the Beast IPTV Perfect Player;

operating, maintaining, updating, hosting, promoting or selling access to domains (and subdomains) through which IPTV (which includes the Beast IPTV Service) is made available, or indirectly made available, advertised, offered for sale or sold;

from communicating the Plaintiffs’ works to the public by telecommunication, including by transmitting or making available, without authorization, the television channels owned and operated by one of the Plaintiffs, Bell Media Inc. on which are broadcast the Bell Programs (“Bell channels”);

making available to the public the Plaintiffs’ works and the Bell Channels, by telecommunication so that members of the public have access from a place and at a time individually chosen by them.

[vi] To increase the Caplan plaintiffs’ chances of getting search engines to voluntarily de-index the Internet harassing content, they should also have asked the court for an order declaring the offensive content to be illegal and removed from the Internet. This type of order was made in the Globe24H.com case to facilitate the voluntary de-indexing of a site by Google.

[vii] Prof. Scassa states: “Another new right is the right of erasure, found in section 55. This provision requires an organization to take steps to dispose of personal information at an individual’s request. The organization must also require any service provider to which it has provided the information to dispose of it. This right of erasure is not the same as a right to be forgotten —which is absent from this statute (but that might still be part of any eventual platform governance initiative by the federal government). The right to erasure requires organizations to dispose of personal information, although it does not require search engines to de-index certain sites containing personal information.”

[viii] Art. 17 GDPR Right to erasure (‘right to be forgotten’) is worded as follows:

The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:

the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;

the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);

the personal data have been unlawfully processed;

the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;

the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.

Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:

for exercising the right of freedom of expression and information;

for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3);

for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or

for the establishment, exercise or defence of legal claims.

Several recitals clarify the intent of the Article.

Recital 65 Right of Rectification and Erasure*

1 A data subject should have the right to have personal data concerning him or her rectified and a ‘right to be forgotten’ where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject. 2In particular, a data subject should have the right to have his or her personal data erased and no longer processed where the personal data are no longer necessary in relation to the purposes for which they are collected or otherwise processed, where a data subject has withdrawn his or her consent or objects to the processing of personal data concerning him or her, or where the processing of his or her personal data does not otherwise comply with this Regulation. 3That right is relevant in particular where the data subject has given his or her consent as a child and is not fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet. 4The data subject should be able to exercise that right notwithstanding the fact that he or she is no longer a child. 5However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information, for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims.

Recital 66 Right to be Forgotten*

1 To strengthen the right to be forgotten in the online environment, the right to erasure should also be extended in such a way that a controller who has made the personal data public should be obliged to inform the controllers which are processing such personal data to erase any links to, or copies or replications of those personal data. 2In doing so, that controller should take reasonable steps, taking into account available technology and the means available to the controller, including technical measures, to inform the controllers which are processing the personal data of the data subject’s request.

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