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W(h)ales can remember

W(h)ales can remember

We’re all familiar with the dubious aphorism that elephants can remember, but history has been silent on the reliability of the memory of whales. Recent developments over at Wikipedia Towers, however, suggests that Jimmy Wales at least will be able to lay claim to a formidable memory courtesy of his company’s new transparency report.

Launching the report earlier this week at London’s Wikimania conference, Wales directly address the EU’s Right to be Forgotten legislation, reporting that the Wikipedia site had received five requests for the removal of links in the past week.

As readers will know, the ‘Right to be Forgotten’ enables individuals to request that old, inaccurate or irrelevant data posted about them online be removed from search engine results. The legislation was precipitated in large part by the actions of a Spanish businessman infuriated that the world could find out about financial troubles he encountered almost a decade ago (ironically, of course, bringing his grievance to the EU courts has made his uncertain financial history internationally famous).

Crucially, decisions on whether to remove the information will be based on weighing the individual’s right to privacy against the public interest: it would be easier to have information about your affair removed if you were a cabinet-maker than a member of the cabinet.

What, then, does Jimmy Wales think? Citing the legislation as nothing short of censorship, he said, “History is a human right and one of the worst things that a person can do is attempt to use force to silence another. I’ve been in the public eye for quite some time. Some people say good things, some people say bad things … that’s history, and I would never use any kind of legal process like to try to suppress it.”

It is Wikipedia’s intention to refuse to remove links when requested (an action which could come with a penalty of up to 1% of their annual revenue). Wales argues that decisions as to whether to remove links would constitute an editorial decision – an important distinction, since media channels are exempt from the legislation (Google is not registered as a media channel, a fact which in effect has made the legislation possible).

It remains to be seen whether Wikipedia will remain true to its word – and indeed whether it will continue to receive many requests under the legislation. But what the Wales/EU tussle serves to demonstrate is the enormous significance of data hosted online. As more and more court cases grow reliant on information gathered from sources such as social media, internet chatrooms both legal and illegal, email correspondence and other internet-hosted data, it is easy to see how the very act of seeking the removal of a link under the Right to be Forgotten legislation might itself constitute evidence. Why ask for the removal? When was it posted? What information does it contain?

As ever, the importance of professional litigation partners such as Legastat who are equipped to advise on and handle the demands of twenty-first century litigation is thrown into sharp relief. The current debate over Right to be Forgotten legislation is only one tiny part of issues surrounding the use of data - and its legal implications – that are making themselves felt across the legal landscape. Without harnessing the powers of legal tech – perhaps particularly, in this context, eDiscovery technology – firms and chambers risk falling behind the curve, unable to offer clients a contemporary service matched to contemporary demands.