The Right to be Forgotten: A Digital Information Perspective on Strengthening New Zealand’s Privacy Laws

Abstract

This thesis is a case study which analyses James unsuccessful attempt to remove himself from a website which publishes financial information about people and businesses, as well as Google search results which also returns the same information as well as James name within its search results. The information that is displayed relates to a no asset procedure that occurred some years ago, and where James has since been successfully discharged from. However, the information is continued to be used and does not reflect the current financial status of James or the no asset procedure. James contends that the ongoing online republication has a dramatic impact on himself and his family and dependants. James believes that Google, and its search service, highlight how New Zealand’s various laws have failed to keep pace with the Internet, to protect people’s rights and freedoms and more specifically provide the Right to be Forgotten. Within this thesis, relevant laws are identified, which in this author’s view, should have protected James from the use of the information in the first instance as well as stopped the ongoing use and republication of that information. Various gaps in the laws, relating to James situation, are identified and discussed. Additionally, the general understanding of what is publicly available information and publication is challenged from the perspective of the various Acts involved. I make the argument that the digitalisation of the Gazette (the gazette) and the Insolvency and Trustee Service (the insolvency and trustee service) has dramatically diminished a person’s reasonable expectation of practical obscurity. In the context of the Right to be Forgotten, two blog posts, from the Privacy Commissioner and now retired District Court Judge - David Harvey are discussed regarding significant challenges with the Internet and the Right to be Forgotten. This author makes eighteen recommendations. Recommended changes to various Acts include The Privacy Act 1993, Credit Reporting Privacy Code 2004, Insolvency Amendment Act 2016, Insolvency Act 2006, Insolvency (Personal Insolvency) Regulations 2007, New Zealand Bill of Rights Act 1990 (the New Zealand Bill of Rights Act), Human Rights Act 1993 (the Human Rights Act), and the Flags, Emblems, and Names Protection Act 1981. The recommendations will improve the existing Acts by plugging holes that have come to light with James’ case study and the Internet and privacy challenges the people, and the law faces. Recommendations include the unconditional right to be forgotten up until a certain age, new overarching Foundational Information Principles, and the use of technology to ensure more streamlined, and cost-efficient means of providing and ensuring the publics privacy will be maintained as well as the removal of public and private information are guaranteed and automatic. These recommendations also address the issue and challenges raised by the Privacy Commissioner and Judge Harvey concerning the right to be forgotten.