On 13 May 2014, the Court of Justice of the European Union (EU) ruled that people have the “right to be forgotten”. The highly touchy judgment grants individuals the right to ask Google to remove links to personal content that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which (it was originally) processed”. Google has no choice but to comply—but will surely soon find itself in a position of being “dammed if it does and damned if it doesn’t….” Ever since Google began its compliance, it has received about 70,000 requests, concerning removal of 250,000 “sensitive” webpage links. Already, the criticism has gained momentum. Google has been faulted for its interpretation of the court’s order and the subsequent removal of links regarding high-profile individuals from its search results. While some links were reinstated following the uproar, it highlights the exceedingly difficult task the search engine faces in following the legal order, without compromising public interest.
Striking a balance between freedom and privacy is tricky at the best of times, and to achieve that balance in a digital world could be a rare art form. The Internet was meant to break down barriers by providing a platform for individuals to connect and share information, not to restrict information. The increasing availability and popularity of mobile phones adds to the difficulty of restricting access. And if one does try to restrict information in the Internet world, it could very well have a rebound effect. People could become more aware and resolute to find ways to communicate and share information. At the same time, the Internet also allows snooping, metaphorically akin to Bentham’s panopticon (a space where the Big Brother is continually watching), where information is easily captured, stored, and is often hard to delete. The openness that makes the Internet a paragon of free speech is also what makes it a tool for “undue” invasion of privacy.
While the “right to be forgotten” creates tension vis-à-vis the “right to information”, there is something deeper behind the ruling. The right to be forgotten inferably stems from the belief that individuals, regardless of what they may have done in the past, deserve a second chance. The case for restorative justice for juvenile perpetrators of violent sex crimes in India is an example of allowing a second chance, albeit the “crime” in this instance is several degrees more ghastly than the one that prompted the EU court to pass the contentious judgment. The EU court ordered Google to remove a link that appeared on a search on Mario Costeja Gonzalez, a man whose house had been sold to pay off debt, so that “harm” could be reduced. Oddly, the judgment has left the task of achieving the impractical balance between what is personal and what ought to be known about an individual (for example, financial misdeeds, professional malpractice, criminal convictions, etc.) to Google, whose incentive to do this may be clearly little. Google has previously argued it’s just an intermediary akin to the traditional postal service that can’t be blamed for the letters it carries. The ruling places Google on an unequal footing with respect to print media or television. Spanish daily LaVanguardia’s website still carries Gonzalez’s story and it is perfectly legal for any other form of print media to also do so.
Given its dominance in search, Google is quite well-placed to remove “objectionable” links since it handles about 80% of all searches in Europe. One could, however, question whether the company has the moral legitimacy or even the intent to carry out such deletions. Besides, it could even game the system by deliberately making, in the words of statisticians, Type II errors, or over-blocking search results to demonstrate the ruling is unimplementable.
To be fair, the EU court failed to give clear guidance on how to handle the trade-offs involved. Perhaps more vexing is the fact that the ruling has left out content publishers. Although Google has more command over cyberspace due to its powerful algorithms that sift through swathes of information, it seems incomplete to only target the intermediary while leaving out the publishers. After all, modern competition law does not target dominance but its abuse, and in this case it’s not clear why Google should be the victim of size. If content ought to be blocked, it should be uniformly done for all platforms. And can you imagine how terms such as “inadequate, irrelevant or no longer relevant or excessive” would apply to print journalism or book publishing? But the argument can’t be allowed to rest there. If the judgment chooses to be discriminatory across platforms on the basis of size and ease of access, there ought to be an independent evaluation of requests to be forgotten. Rather than Google handling such requests, the job should ideally be done by an autonomous body.
While the ethos behind the right to be forgotten is hardly objectionable (forgiveness is a virtue and control over one’s data is a right), it could be argued that true forgiveness is not based on the omission of information, but rather on having complete knowledge and still granting the person in question the opportunity to start afresh.
Nevertheless, many believe that the days of cyber-intrusiveness should come to an end and that this judgment is a step in the right direction for preserving individuals’ digital privacy. After all, the principle of the right to be forgotten has been enshrined in European data protection laws since 1995 and is now simply being extended to the domain of the Internet. And clearly this extension is where the whole edifice could crumble. One of the founding principles of the Internet is information neutrality. Besides, open technical standards, the Internet has thrived on free and open exchange of information. Any suggestion that individuals should be editors of content is damaging to its very conception.
The judgment may also set a dangerous precedent which other countries could be tempted to follow. In parts of the developing world where cronyism is rife and institutions protecting the public interests are weak, the right to be forgotten may be difficult to implement without bias. In the case of India, the trade-off between freedom and privacy is not adequately articulated. Despite India’s Information Technology (Intermediaries Guidelines) Rules drawing heavily from the EU legislation, there is no comprehensive note on privacy. In fact, the concept of privacy in the IT Act of 2008 is limited to nudity. This is a far cry from the right to be forgotten.
In a dystopian scenario, the judgment can ultimately lead to the balkanization of the Internet whereby users have access to different information depending on local laws of their region. According to Milton Mueller, a professor specializing in the geopolitics of the Internet, “there is a strong and persistent tension between state sovereignty, which is territorially bounded, and the non-territorial space…created by networked computers.” This is evident from the regular run-ins between Google and the Chinese state and incidents of search-result censorship by Baidu, the Chinese search engine. At NetMundial, the world’s most recent Internet governance forum, India articulated the need for an “open and un-fragmented cyberspace,” keeping in mind the interests of its 200 million Internet users and democratic polity. This objective will be hard to meet if the world cannot agree on how best individual privacy can be respected without hurting the public’s right to know.
In short, the recurrent debate on freedom versus privacy will not disappear. The task of balancing these two objectives is comparable to walking the tightrope. While there are genuine doubts on whether one can truly be forgotten in today’s hyper-connected world, the debate surrounding these issues must take off in India to ensure that the principles of the offline world are effectively transposed to the online world, without diluting the fundamental ethic of a free and open Internet.
Rajat Kathuria is director and chief executive, Indian Council for Research on International Economic Relations (Icrier); Sirus J. Libeiro is a research associate at Icrier; Sugandha Srivastav is a junior consultant, Icrier.
Views are personal.