The Right to Know or the Right to be Forgotten?

September 28 was “International Right to Know Day”, a prescient day for Hong Kong in light of recent curbs on press freedoms. It was an occasion to raise awareness around our citizens’ right to information, and to consider how calls to extend a so-called “right to be forgotten” to Hong Kong could jeopardize the principle of freedom of expression that is enshrined in our Basic Law, and which has become a hallmark of our city.

September 28 was “International Right to Know Day”, a prescient day for Hong Kong in light of recent curbs on press freedoms. It was an occasion to raise awareness around our citizens’ right to information, and to consider how calls to extend a so-called “right to be forgotten” to Hong Kong could jeopardize the principle of freedom of expression that is enshrined in our Basic Law, and which has become a hallmark of our city.

To mark this day, the Journalism and Media Studies Centre at the University of Hong Kong published its 2014 Hong Kong Transparency Report. The report was conceived to inform Internet users about how their personal data is being accessed and handled by government. It also outlines the requests made by government to internet service providers (ISPs) to remove content online. These are important indicators of the free flow of information online, and in turn, the extent to which our right to freely express ourselves is being preserved.

In 2013, five government departments made a total of 5,511 requests to ISPs for a range of user information including contact details and IP addresses. Among these, 70% of requests were granted. Another 1,956 requests were made to ISPs to take down articles, web pages and hyperlinks. It might be surprising to learn that nearly 100% of these content removal requests were granted.

These numbers are far from comprehensive as several government offices have so far refused to disclose this information, citing legal or operational restrictions. What emerges is a distinct lack of transparency around the government’s request making process. Not only has the government chosen to keep its procedures for submitting information requests shrouded in secrecy, its departments are also not subject to independent oversight in this regard.

Government should act responsibly by way of taking the initiative to inform Hong Kong’s citizens about what it is doing with their private data, and introduce a monitoring mechanism to ensure that information and content takedown requests are in fact appropriate and necessary. Disclosing its data and content removal requests proactively and on a regular basis — not just when called upon by a legislator — would also improve government’s efficiency and effectiveness, by reducing the number of public queries in this area.

We have long prided and differentiated ourselves in the region on the principles of freedom of speech, press and expression that have been upheld in Hong Kong. Citizens can access information, while journalists are able to do their due diligence and research for their investigative reports. The free flow of information has also, without a doubt, been one of Hong Kong’s greatest drawcards for businesses setting up shop in this part of the world.

It’s in this context that the Hong Kong Privacy Commissioner’s recent calls to limit our right to know are worrisome. Earlier this year, the European Court of Justice held that anyone living in Europe has the right to ask search engines to remove links to web pages that contain information about them that is considered to be “inadequate, irrelevant or no longer relevant”, even if that information is accurate. Notwithstanding the unresolved debate that has ensued as a result of this newly minted “right to be forgotten” in Europe, pitting one person’s right to privacy against another person’s right to information and right to know, our privacy commissioner has not been discouraged from proposing it be extended to Asia.

There are instances where it’s difficult not to sympathize with requests to be “forgotten”, to remove information from the Internet to protect an individual’s privacy. For example, a request by the parents of a girl who was decapacitated in a horrific car crash, photos of whom were leaked and spread like wildfire across the internet. But a balance between protecting an individual’s right to privacy and the public’s right to information must be found.

What would a “right to be forgotten” mean for Hong Kong? One thing is for sure, Hong Kong’s citizens would be worse off as they would be forced to make decisions based on partial or censored information. Just consider how we individually look to the Internet for information to help answer important questions — ranging from healthcare to food safety, education to transportation information.

The government’s unbridled actions to seek information about Internet users and remove content from the web, together with murmurs of importing a right to be forgotten to Hong Kong are both alarming and disconcerting.  Without clear court orders or legal guidelines, these actions demonstrate a dangerous trend of government sacrificing citizens’ right to information and right to know while exercising unauthorised online surveillance and censorship.

Hong Kong Internet users have the right to know how their data is being accessed and handled by other parties, and the government has an obligation to respect users’ privacy and regularly disclose its data and removal requests made to online service providers.  Equally important are citizens’ fundamental right to access uncensored information online. After all, openness and transparency are what enable us to share, learn and improve. The city’s policy and law makers, including the Privacy Commissioner, must ensure these basic principles continue to be upheld in Hong Kong.

This opinion piece was first published on The Standard.

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