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Obscurity may be the middle ground

Delisting search results invokes the power of obscurity, a measure that looks to make information safer by making it hard to obtain

As part of a special series for Mint, Ashi Mehta, a student at the National Law School of India University, looks at how the right to privacy deeply intersects with other rights such as the right to information and right to free speech. In the second piece in the series, Mehta looks at why delisting a search result instead of erasing it is perhaps the more balanced solution:

At the height of the Indian #MeToo movement in 2018, multiple allegations were made against influential artist Subodh Gupta by an anonymous Instagram handle. Almost a year later, the Delhi high court directed the account to stop posting about Gupta and asked tech behemoths Google and Instagram to take down the ‘defamatory content’ against him. In 2016, a banker approached the Delhi high court to prevent details of his marital dispute from surfacing every time he looked up his name online. The common thread running through both these cases is the fact that search engines today function as extraordinary repositories of memories.

Some privacy advocates believe that in order to protect privacy we should be looking to artificially create gaps in those memories.

The EU Court of Justice first brought this form of privacy protection to the fore when it ruled in the case of Google Spain vs Costejas, that if an individual makes a request for delisting news of his bankruptcy, search engines must remove the requested web addresses from search results. Costeja’s case reminds us of how much laws rely on the fallibility of human memory to protect our reputation. The passage of time makes it difficult for people to recall facts—removing them from public domain makes it harder still. When we think about the tools we use daily to remember information on our behalf—navigation apps tell us how to get to our destinations, or our contact book stores phone numbers and birthdays for us—this becomes all the more evident.

Paradoxically, being the face of a seminal litigation has etched Costeja’s previous state of bankruptcy in history books. But his legal expedition has been the dawn of a new chapter for privacy rights.

While famously known as the ‘Right to Be Forgotten’, the delisted information continues to be available on the internet even after it has been removed from search engines. A more effective solution might be the provisions under the California Consumer Privacy Act, EU’s General Data Protection Regulation, and India’s Personal Data Protection Bill, 2019, which give data principals the right to ask for the erasure of their personal data under certain conditions.

On the other hand, delisting search results invokes the power of obscurity. This privacy measure looks to make information safer by making it hard to obtain. When information is hard to come by, the only people who will seize upon it are those with sufficient motivation to expend the necessary effort and resources. Advocates of this method argue that given the magnitude of information competing for our attention and the powerful inertia of human behaviour, we should not underestimate the deterrent power of this measure.

But as courts in India start warming up to this method of privacy, it would bode us well to keep certain things in mind. Judges must first identify where the information in question lies along the spectrum of ‘total oblivion’ or ‘completely public’. Keeping information nowhere except in your mind would ensure the total oblivion of that information. On the other hand, having it appear as the first search result on Google would make it public. Most information lies somewhere in this spectrum. It is only once this evaluation has been successfully done, can the other interests (such as to whether the public is entitled to know this information because it concerns a public figure, etc.) be determined.

This process is vital because the right to privacy deeply intersects with other rights such as the right to information and the right to free speech. Considering the operation of these competing rights, adopting a ‘modest measure’ such as delisting a search result instead of erasing it entirely is perhaps the more balanced solution. Complete erasure could have the effect of chilling free speech in more restrictive regimes. Obscurity walks the thin line between two extremes.

The measure is rarely presented as the definitive solution to protect privacy, even by its own advocates. However, by embracing obscurity, we can truly come to terms with the reality of our modern lives – that with sophisticated technology at our fingertips, information may slip through the cracks of our mind, but our actions will never be truly ‘forgotten’.

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