Originally Published 2015-07-08 09:28:37 Published on Jul 08, 2015
Is protection of individual privacy more important than the protection of uncensored Internet?

In the age of 24-hour news cycles and continuous online updates, we are bombarded with information, much of which is swept aside when the next big story comes along. The information, however, continues to circulate, and can be easily found with a simple online search. So what happens when it is inaccurate, irrelevant or damaging to the person it’s about? That’s where the right to be forgotten comes in.

The case that kicked off the current debate is Google vs Gonzalez, which in May 2014 saw the European Court of Justice make the right to be forgotten part of European law. The plaintiff relied on the EU data-protection directive — which holds that controllers of data must remove irrelevant personal data if requested to do so — to force Google to de-index search results relating to his previous financial status.

De-indexing results makes them much more difficult, if not impossible, to find online. Google, along with other search engines affected by the ruling, has set up a formal request system whereby users can submit links they would like removed, and give justifications for doing so. Nevertheless, the ruling has certain limitations.

The data protection directive only protects information relating to ‘natural persons’. Businesses and corporations cannot request data deletion. Moreover, the ruling only applies to certain domains, mainly those in Europe. The information can still be accessed from international versions of sites like Google and Yahoo.

In India, there is no explicit recognition of the right to be forgotten. Due to the absence of any legal backing, right to be forgotten requests have been rejected by Indian intermediaries in the past. That, however, does not mean that it doesn’t have important consequences for the right to privacy and the freedom of expression.

It has been argued that right to be forgotten strengthens privacy and should be granted when the public interest test is satisfied. But acknowledgement of the right would indicate that search engines could adjudicate what constitutes public interest. An alternative could be found in the sensitive data-protection rules under the Information Technology Act. This would entail that if the right to be forgotten is formally recognised, it should only be allowed to the extent of removal of sensitive personal data, and nothing else.

Ultimately, any such formal recognition must be informed by experiences from real-life content removal requests. In Europe, where the right to be forgotten has been recognised, many of the data-deletion requests involve the removal of past criminal behaviour. Nearly 20% of the requests were for removal of reportage relating to fraud, and 12% for allegations relating to child pornography. The question now is whether protection of individual privacy is more important than the protection of an uncensored internet.

We tend to lose control of data that goes online. Photos and posts to social networking sites return to haunt us when prospective employers have access to them. Expunged criminal records become public knowledge. Disgruntled partners can launch devastating revenge porn attacks. Privacy is surrendered to the internet’s whims. The right to be forgotten presents people a way to protect their personal data.

However, it has also raised concerns. Allowing users to ask Google, Yahoo, Bing or any data controller to remove links to news stories or other resources results in a controlled online narrative. This runs counter to free information-sharing on the internet. One of the great advantages of the internet is the ease with which information can be uploaded, accessed and cross-linked. It provides different perspectives and sources of information that traditional media does not accommodate.

A search engine may weigh the public interest in such information against the right of the person seeking its removal. But this process is seldom transparent. Moreover, drawing attention to the content being removed would only further highlight it, creating what is known as a ‘Streisand effect’. With online privacy and data protection fast becoming important areas of legislative consideration, it is only a matter of time before proponents of the right to be forgotten seek its formal approval. But a nuanced conversation about this right will only get off the ground after a comprehensive right to privacy is established.

Unlike most progressive democracies, India is still struggling to acknowledge the right as a basic constitutional value. In addition to the legislative difficulties, there’s the question whether the right to be forgotten will actually serve to protect the privacy interests.

This article originally appeared in Economic Times.

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Cledwyn Fernandez

Cledwyn Fernandez

Cledwyn Fernandez Fellow Indian Council for Research on International Economic Relations

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