Mr X, once a struggling film actor, was accused and later exonerated of rape charges, which the jury found out to be motivated and fake. Not able to cope up with the situation, he changed profession and moved on. Thirty years later, while his closest friends know about the incident, his co-workers do not. One day, out of curiosity, he searches for his name on the internet, and to his surprise, finds that the third entry that comes up is an old report in a local newspaper about the rape charges he faced. Mr X is upset; after all these years, he would like to be able to disclose the event only to whomever he wants. He has heard about the decision of European Court of Justice which allows individuals to submit requests to a search engine to remove certain results from searches on their names, and citing the same, requests the search engine and media outlet to remove the results. Valid arguments can be advanced for making the Right to be Forgotten a fundamental right? What those arguments could be? What limitations, if any, can it be subjected to? Should there be any obligations on the search engines regarding cases, which are no longer relevant, as the one mentioned above? (15 Marks)

Mentors Comments:

  • The answer should discuss concerns of right to be forgotten vis-à-vis right to freedom of expression and right to know. 
  • The focus should be on the reasoning of arguments to justify the stand. 
  • Clearly mention what restrictions and under what circumstances can such rights be breached.

Answer:

Fundamental rights are basic human freedoms, which enable living a meaningful and dignified life through a harmonious development of personality. To evaluate whether people have an inalienable right to be forgotten or not, we must evaluate its substance as well as utility for the individual and the society.

Arguments in favour of the right to be forgotten:

  • It is clear from the situation of Mr X that the reports are not relevant today and do infringe to a certain extent on his right to privacy.
  • These reports, which are no longer relevant and were wrong in the first place, are maligning his character and thus such reports also violate basic human dignity.
  • Some countries already have conventions/laws regarding outdated information, such as in this case. Even in cases of criminals who have served sentences, after a certain period of time, they do not need to refer to these cases, for example, to seek jobs, insurance or in civil proceedings.

Arguments Against the right to be forgotten:

  • Since the event actually happened it becomes part of the news and therefore there is also a right to know for anybody interested in learning Mr X’s past.
  • This impacts the right to freedom of expression, particularly of media and the search engines.
  • It can also be construed as an attempt to censor the Internet and to rewrite history.
  • It must be mentioned that the right to be forgotten is distinct from the right to privacy, which constitutes information that is not publicly known, whereas the former involves removing information that was publicly known at a certain time.
  • It is essentially an individual right but can be misused by corporations seeking to erase past data.
  • Its relevance to society is also debatable as it poses challenges to the right to information.

Therefore the case for making it a fundamental right is not so strong. However, with a progressive outlook on individual liberty, a case can be made for making it a statutory right, which details the conditions and manner of its application.

It cannot be absolute. It cannot ask the information to be deleted by the source. It can only ask that it be made available only when explicitly sought.

As mentioned above, search Engines have the obligation to remove data that is inadequate, irrelevant or no longer relevant. But this can only be done on case by case requests. Search engines produce results on the basis of automated algorithms and do not treat the searches differently. It is they who decide whether the information is useful or redundant. In their judgment, they must ensure that such individual requests do not lead to putting biased and patchy results, compromising the integrity of internet-based information.

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