The Supreme Court of Madras last week affirmed a person’s “right to be forgotten”. The bank found that those acquitted of previous charges have the right to have their names removed from the verdict – to protect their privacy.
Put simply, the right to be forgotten means the right to have personal information removed from public databases and search engines as soon as it is no longer relevant. In India, judicial application is still in its infancy. Previous petitions have indicated that those who have been acquitted or whose judicial petitions have been settled can request that their names be removed from the digital file to allow them to reintegrate into society.
But the problem is understandably questionable for two reasons. First, deciding when a person’s information is no longer relevant is as subjective as it gets. Second, societal norms regarding memory have shifted in a virtual age where the digital footprint makes it nearly impossible to be complete to forget someone.
The idea of determining the “relevance” of one’s own information forms the core of the debate. A relatively innocuous example of an individual’s data feeling insignificant can be traced back to the first appeal of the legal claim in Indian courts. In 2017 the Karnataka Supreme Court recognized the right to be forgotten in a case where a woman applied for annulment. Earlier this year The Delhi High Court also upheld this right by instructing internet search engines to omit references to a judgment on a petitioner because the search results affected his career prospects.
But the idea of the right to be forgotten goes beyond such cases. In the present case, HC Madras ruled in favor of a man who had been acquitted of allegations of rape and requested that his name be deleted from the court records. In particular, the fact that the person is being forgotten in the name of “due process” at a time when perpetrators avoid conviction on problematic arguments about their innocence can make justice even more difficult for survivors to grasp.
Exercising this right raises two questions: When is information about someone no longer relevant? And for whom? Of course, the scope is still being debated and some argue that its application needs to be balanced against the public interest and freedom of expression and expression. Recognizing such contradictions, the Supreme Court, in a ruling on the right to privacy, agreed to the idea that the right to be forgotten should be exercised with caution.
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The argument of freedom of expression is put forward in relation to the right that journalists may be required to delete the names of petitioners seeking protection of that right. Experts also fear that without the right balance, politicians and public figures could be empowered to remove unwanted public reporting of them.
In addition, it is potentially detrimental to accountability movements like the #MeToo movement – in 2019 a petition against The Quint in the Delhi High Court called for two articles on an accused MeToo to be removed.
But even this argument shows a complex picture. The Karnataka Supreme Court ruled in 2017 that the law is particularly important in “sensitive matters” relating to women and their privacy. For example, such a right may help revenge porn survivors put online by former partners or perpetrators of sexual assault. There is currently no concrete way for survivors to remove images and videos uploaded online without their consent.
The law could potentially benefit citizens who have been wrongly arrested or convicted while law enforcement enthusiastically muzzles dissent. If the accused is arrested for sedition or the draconian UAPA to further intimidate the state, the law helps to preserve their integration. While many people are held in public memory as a beacon of resistance, a person may want to simply return to their lives without the burden of speaking out against prison systems.
Although there are competing arguments for and against the right to be forgotten, the idea is worth debating even in the context of our digital footprints; where every aspect of our lives can be kept, monitored, bought or sold online indefinitely.
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If the The default setting of human memory is to be forgottenWhat does it mean to us and our data that the only reason our shared external hard drive – the internet – goes down is to remember? The idea that our digital footprint can and will track us was developed by Viktor Mayer Schönberger, who argued that the Internet ties us to our past actions and does not allow us to grow from them. Mayer opposes the idea that the right contradicts the right to freedom of expression – “for him it is closely linked to the natural process of forgetting the past,” according to the Center for Internet and Society.
The right to be forgotten is also inextricably linked with that of privacy. In India’s recent recognition of the right to privacy as a fundamental right, Judge Sanjay Kishal Kaul has noticed that the “right of a person to exercise control over their personal data and to be able to determine their own life includes their right to control their existence on the Internet”. Additionally, the proposed 2019 Personal Data Protection Act recognizes a person’s right to be forgotten, but notes that it is not an “absolute right” – government-appointed officials can decide whether or not a request can be considered. This carries the risk that the official’s bias creeps into his decision as to whether or not the personal data of a person in the digital public file is still relevant.
The right to be forgotten is recognized much more widely in the European Union. Individuals can, in the interests of their personal dignity and privacy, request that their personal information be removed from the Internet without being harmed. The idea has predictably met fierce opposition from Big Tech, that almost cartoon-like giant, maze-like entity whose interest is in mining our data for revenue.
If we are not careful, the data that contains our personal data can be used against us. In fact, it already has. The Pegasus Report is arguably the story of our time in terms of how our personal data can be used against us and how dangerous our digital footprints are. Data that is accessed by us without our consent can be publicly transmitted in an unsavory manner, which threatens the freedom and dignity of the individual.
The right to be forgotten can provide some breathing space as we find out who we want to be forgotten by – the state, the public, or both.
The right to be forgotten depends on how we can remove ourselves from the public when our information is put there against our will. But can this right also extend to those who wish to withdraw voluntarily entered information? In light of these questions, the right to be forgotten is therefore a key issue worth revisiting as a potential ally in the struggle for our privacy and dignity.