EDUCATION SERIES – CASE & CONCEPT REVIEWS: The Right to Be Forgotten

Brian AJ Newman LLB
2 minutes ago
5 min read

Can the Internet Ever Truly Forget?

By Brian A.J. Newman, LLB - Employment & Human Rights Advocate

There was a time when a person's reputation faded with memory.

A newspaper article would eventually yellow with age. Court files sat quietly in archives. Embarrassing mistakes became stories told only by those who remembered them.

The internet changed everything.

Today, a single search result can preserve a person's worst moment indefinitely. A youthful mistake, an unsuccessful court case, an outdated news article or a long-resolved allegation can remain one Google search away decades later.

This has given rise to one of the most fascinating modern human rights debates:

Should people have a legal right to be forgotten?

The answer depends entirely on where you live.

EDUCATION SERIES – CASE & CONCEPT REVIEWS: The Right to Be Forgotten

What is the Right to be Forgotten?

The "Right to be Forgotten" is the principle that individuals should, in certain circumstances, be able to require personal information about themselves to be removed from search engines or online platforms when continued publication is no longer justified.

Importantly, it does not necessarily delete information from the internet.

Instead, it generally concerns:

removing search engine results;
de-indexing webpages;
preventing outdated information from appearing in searches;
protecting privacy where publication no longer serves a legitimate public interest.

The principle attempts to balance two competing human rights:

the individual's right to privacy, dignity and rehabilitation; and
society's right to freedom of expression and access to information.

That balance is extraordinarily difficult.

The Birth of the Right

The modern doctrine began in Europe.

Google Spain SL v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González (2014)

In 1998, a Spanish newspaper lawfully published notices relating to Mario Costeja González's financial difficulties.

Years later the debts had long been resolved.

Yet every Google search of his name produced those decades-old notices.

Mr Costeja argued that the continued indexing of those articles unfairly damaged his reputation.

The Court of Justice of the European Union agreed.

It held that Google was a data controller and, in appropriate circumstances, could be required to remove search results that were:

inadequate;
irrelevant;
no longer relevant;
excessive.

The original newspaper article remained lawful.

Google simply could not continue directing people to it in ordinary name searches.

The decision transformed internet privacy around the world.

Europe Leads the World

The European Union subsequently incorporated the principle into the General Data Protection Regulation (GDPR).

Article 17 provides individuals with a Right to Erasure.

People may request deletion of personal information where:

consent has been withdrawn;
the information is no longer necessary;
processing is unlawful;
the information was collected as a child;
there is no overriding public interest.

The right is not absolute.

It does not override:

journalism;
academic research;
public health;
legal obligations;
freedom of expression;
public interest reporting.

European law therefore recognises that privacy must always be balanced against democracy.

Australia Does Not Recognise a General Right

Many Australians are surprised to learn that Australia has no recognised legal Right to be Forgotten.

Instead, Australians rely upon a patchwork of laws including:

the Privacy Act 1988 (Cth);
defamation law;
equitable obligations of confidence;
suppression orders;
takedown requests;
platform complaint mechanisms.

Unlike Europe, Australia has never enacted legislation giving citizens a general right to require search engines to erase lawful historical information.

Why Australia Has Been Reluctant

Australia has traditionally placed significant weight on:

open justice;
public records;
historical accuracy;
freedom of political communication.

Australian courts have repeatedly recognised the importance of public access to judicial proceedings.

Court decisions are generally public documents.

Judgments exist not merely for the parties, but for society.

The administration of justice depends upon transparency.

Lenah Game Meats and Privacy

Australia's leading privacy authority remains:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.

Although the High Court declined to recognise a standalone tort of invasion of privacy, several judges accepted that Australian law may eventually evolve to recognise one.

The decision remains foundational in discussions concerning privacy and freedom of expression.

It demonstrates that Australian courts recognise privacy interests while remaining cautious about restricting publication.

Privacy versus Freedom of Expression

The debate is not simply legal.

It is philosophical.

Imagine:

A university student commits a foolish offence aged 18.
They receive a small fine.
Twenty-five years later they are applying for employment.
Every Google search still reveals the article.

Should that person continue paying forever?

Now change the facts.

Imagine the article concerns:

a corrupt politician;
a fraudulent financial adviser;
a convicted child offender;
a dangerous medical practitioner.

Should those search results disappear?

Most people instinctively answer differently.

That is precisely why the law struggles.

Human Rights Require Balance

International human rights law protects both:

Article 17 – International Covenant on Civil and Political Rights

Protection from arbitrary interference with privacy.

and

Article 19

Freedom of expression and the right to receive information.

Neither right automatically prevails.

International courts increasingly recognise that freedom of expression also protects the public's right to receive information, meaning restrictions on publication may also interfere with democratic accountability. The African Commission on Human and Peoples' Rights has repeatedly recognised that suppressing expression may simultaneously deprive the public of valuable information, while the Inter-American Court has described access to State-held information as an essential component of democratic participation.

Reputation Should Not Become a Life Sentence

Perhaps the strongest argument supporting a Right to be Forgotten is rehabilitation.

Modern societies believe people can change.

Former prisoners can rebuild their lives.

Children mature.

Addiction can be overcome.

Debts are repaid.

Relationships fail.

Businesses collapse.

Yet the internet often refuses to acknowledge any of that.

Algorithms have no compassion.

They remember everything equally.

The Risks of Forgetting

Equally compelling are the arguments against.

History matters.

Journalists perform an essential democratic function.

Public archives expose corruption.

Victims deserve to tell their stories.

Future employers sometimes have legitimate reasons to understand past conduct.

Erasing uncomfortable truths risks rewriting history.

Society has long recognised that transparency is one of democracy's strongest safeguards.

Artificial Intelligence Raises New Questions

Artificial intelligence changes the debate again.

Search engines no longer merely locate information.

AI summarises it.
Ranks it.
Explains it.
Repeats it.
Generates new descriptions from old material.
Even if the original article disappears, AI systems may already have absorbed its contents.

The practical meaning of "forgetting" becomes increasingly uncertain.

Future debates may concern not merely deleting webpages but requiring artificial intelligence systems to stop reproducing outdated personal information.

Where is Australia Heading?

Australia's privacy reforms continue to evolve.

The Australian Government has considered proposals strengthening privacy protections, improving online safety, and introducing broader remedies for serious invasions of privacy.

Whether Australia eventually adopts a European-style Right to be Forgotten remains uncertain.

If it does, Parliament will almost certainly need to strike a careful balance between:

privacy;
rehabilitation;
freedom of expression;
open justice;
public confidence in the administration of justice.

Final Thoughts

The Right to be Forgotten asks a deceptively simple question:

How long should the past control the future?

There is no universal answer.

Some information should never disappear.

Other information serves no continuing public purpose and merely prolongs private suffering.

The challenge for democratic societies is not choosing between privacy and freedom of expression—it is recognising that both are fundamental human rights deserving equal respect.

The law's task is to find the point at which remembering serves the public, and forgetting serves justice.