Privacy or Spoliation?
A movement is afoot in the European Union to grant individuals an online “right to be forgotten.” The general idea is that a person would have the right to force a service provider to delete data the provider possesses about the person. That right would promote privacy.
Yet the right to be forgotten clashes with another emerging expectation in modern law, that is, the expectation that organizations will maintain extensive records about their activities. Broadly speaking, law in the digital age has become increasingly suspicious of early destruction of records. See UK case, record retention trends and civil law jurisdictions.
The ability of computers to create and preserve prodigious quantities of records has fueled a sense that organizations should keep records so they can be held accountable to society.
Law expects organizations to retain records for many purposes: consumer protection, collection of taxes, investigation of fraud, resolution of civil disputes and innumerable other purposes. If an organization deletes records too early, law will punish the organization under doctrines like spoliation and obstruction of justice.
So . . . when an organization evaluates whether to delete a person's data for privacy purposes, it also must weigh whether the data is a record that must be preserved under some other principle of law.
[Update November 2011] A US court ruled that putative privacy interests under European law do not justify the destruction of emails needed for litigation in the US. In IO Group Inc., et al. v. GLBT Ltd., et al., U.S. District Court for the Northern District of California punished a website owner for intentionally destroying emails relevant to copyright litigation. The website owner argued that U.K. Data Protection Act 1998 required destruction of the emails because they contained personally identifiable information that was no longer needed for business. The court dismissed the argument and held that the website owner had engaged in spoliation. E-Commerce Law Week; Issue 683, Week Ending November 19, 2011.