In a digital age, where every online search, shared social media post and uploaded blog leaves a trace leading to the preservation of information, the Right To Be Forgotten (RTBF) or -Right to Erasure- is emerging as a significant concept. The Internet has not only revolutionized the globe making information easily accessible but also poses a dark shadow over privacy and personal information. The online image of a person becomes his identity attaching a retrospective label that follows him indefinitely. Past acts and records of a person still pop up whether it’s a news report, a social media post, or a court record he was acquitted of. The Right To Be Forgotten (RTBF) is a data protection right that allows individuals to request the deletion of their personal data and records from the internet if it is outdated, irrelevant, or harmful. RTBF in the digital age comes under the domain of the right of privacy yet, is perceived to be conflicting with freedom of speech, public interest, and right to information. It leads to debates about whether someone should be allowed to erase their past. Where do we draw a line between the right to privacy and the public’s right to information? This blog will cover:
- The legal evolution of RTBF
- Its application in the global context and South Asia
- Challenges in its fair application.
Defining the Right to Be Forgotten: Legal Foundations and Evolution
Article 17 of the EU General Data Protection Regulation (GDPR) defines the RTBF as :
“The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay…”
It applies when:
- The data collected is no longer necessary for the purposes it was collected
- It was collected illegally
- The data has to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject.
Moreover, the RTBF aligns with the goals of privacy protection laws in the EU and Article 8 of The Charter of Fundamental Rights of the EU. The GDPR Recital 65, discusses how individuals should have a right to erase their personal data when the consent is withdrawn.
The RTBF gained significant legal momentum with the 2014 judgment of the Court of Justice of the European Union (CJEU) in the case of Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González [(Case C‑131/12)]. Mario Costeja González, a Spanish citizen filed a suit against the newspaper La Vanguardia and Google Spain after a 1998 notice of an auction of this repossessed house kept reappearing and damaging his reputation. The court first time recognized the RTBF as a basic right and set a precedent that search engines like Google are obligated to delist searches upon valid requests. From there the RTBF got recognition as a fundamental right paving the way for inculcation in the GDPR. It also supported the idea of the RTBF as a fundamental right under Article 8 of The Charter of Fundamental Rights in the EU. Moreover, they also stated that the Right to Privacy will prevail over the Public’s Right to Information in cases of individuals who are not public figures validating their RTBF.
The RTBF has become significant in the digital era due to the permanent nature of data on the internet. Every second data is being uploaded and analyzed at trillions of sites. The more a person is engaged on the internet more the permanence of his digital footprints is becoming a concern. Any file, document, or piece of information once uploaded is never deleted. The data can be easily retrieved through AI-powered search engines leading to a permanent stigmatization in society. For example, personal data, criminal charges, or outdated news articles continue to harm and destroy a person’s reputation even after the issue has long resolved. The Recital 66 of GDPR clearly explains that online stigmatization of a person due to old news or information when it serves no legitimate purpose is a violation of Article 17 of GDPR.
Global Recognition of RTBF: Key Legal Precedents and International Variations
Unlike the European Union, The U.S. does not have a formal law dealing with the RTBF. The U.S. places great significance on the Freedom of speech often prioritizing it over the RTBF. The U.S. interpretation of Freedom of expression granted by the First Amendment of the U.S. Constitution often clashes with the right to privacy.
In the case law Google Inc. v. Oracle America, Inc. (2014), the court emphasized the importance of companies and individuals sharing information as protected by the Constitution. The court held that the dissemination of content was protected by the First Amendment even if it can be harmful for individuals. The court prioritized the public’s right to information over the individual’s right to privacy.
In the case Jane Doe v. Google (2018) the court ruled that Google was not required to remove outdated articles on a convicted person. The court further stated that the First Amendment allowed such information to be publicly available especially when it can be found publicly on the court records. The lack of regulatory frameworks on the RTBF in the U.S. has raised a lot of privacy concerns leading to a disconnect with freedom of speech.
While the EU has regulatory frameworks regarding The RTBF the U.S.’s approach is still public-centric regardless of the impact it has on an individual’s right to privacy. These conflicting philosophies become a challenge for South-Asian states where the right to privacy and its jurisprudential framework is still underdeveloped.
The Right to Be Forgotten in South Asia: Emerging Legal Frameworks
The concept of the RTBF is a developing legal concept in South Asia. Unlike the EU most South Asian countries do not have a comprehensive law on the RTBF. However, the judicial precedents and proposed amendments are slowly contributing to the development of this legal perspective.
India does not yet have a codified law protecting the RTBF but the active judicial interpretation and developing jurisprudence are paving the way towards its development. The landmark case of Justice K.S. Puttaswamy v. Union of India (2017) led to the recognition of the ‘Right of Privacy’ as a fundamental right in Article 21 of the Indian constitution.
In X v. Union of India (2021), the court accepted the plea to remove public access to the judgment involving the acquittal of the defendant’s criminal charge while considering his right to dignity, signaling towards RTBF. Moreover, India’s proposed Digital Personal Data Protection Act (DPDPA) 2023 includes the right of information removal of personal data from the internet in case of request like the EU’s GDPR.
On the contrary, in Pakistan, the RTBF is largely underdeveloped. The ‘Right to Privacy’ is recognized under Article 14(1) of the constitution of Pakistan. But no effective legislation or legal precedent can be found catering to this legal point. While the Personal Data Protection Bill 2021 is still pending enactment, it might grant people some level of privacy and control over the erasure of their digital footprints. The absence of any effective legislation and judicial precedent has created a legal void in Pakistan’s interpretation of the RTBF. In certain places, the court has hinted at the importance of an individual’s right to privacy and control in some cybercrime cases. But the presence of a clear stance is absent creating issues.
Balancing Privacy and Public Interest: Legal and Ethical Barriers to RTBF Implementation
One of the most striking challenges in the implementation of RTBF lies in the maintenance of balance between an individual’s right to privacy and society’s right to information. The broad interpretation of RTBF can lead to infringement of media rights and will allow public figures to remove their criminal activity records under the umbrella of RTBF. The Recital 65 of GDPR allows the removal of information with some exceptions. In cases where the implementation of RTBF would not serve or undermine public goodness, RTBF cannot be exercised. Similarly, in the case study of Pakistan, a clash is evident in Article 14 ensuring ‘privacy and dignity’, and Article 19 ‘freedom of speech’. Without proper laws, courts may find it challenging to determine whether the removal of online content benefiting an individual while damaging transparency is okay or not.
Practical Challenges and Technological Hurdles in Enforcing RTBF
In jurisdictions where RTBF is present the complete deletion of a piece of information remains a challenge. Any content once uploaded is reposted and copied at various sites and platforms making complete vanishing impossible. Delisting links or creating firewalls only works within a limited territory. The content can still be accessed in borderless internet spaces or through VPNs. AI-powered search engines cannot distinguish between information causing a public nuisance and information important to public interest leading to over-censorship issues. In countries like Pakistan and India where RTBF still has a long jurisprudential development to make, the lack of tools and authority to implement such decisions is a pressing challenge.
The Way Forward
The practical implementation of RTBF in Pakistan lies in establishing a comprehensive legal framework that deals with RTBF protections and its implementations. Moreover, independent bodies must be made to cater to the balance between clashing laws like Articles 14 and 19 and their unbiased implementation in different situations. Additionally, FIA and tech agencies must collaborate to effectively ensure the erasure of requested pieces of information. Moreover, workshops and digital literacy initiatives must be taken to help people effectively use cyberspace.
Conclusion
In a nutshell, within the ambit of shifting digital realities, RTBF is emerging as a key principal right Its practical implementation around the globe is contingent upon the formation of a comprehensive legal framework, institutional oversight, and judicial precedents under the EU’s GDPR. In Pakistan, its effective implementation lies in balancing the intricate structure between articles 14 and 19. Moreover, with jurisprudential development, and educating masses, the concept of RTBF can see the light of the day rather than being a mere theory.
Author
Areeba Imran
Member Pakistan Youth Parliament