An attempt to rewrite history

Recognising the right to be forgotten will have its pitfalls and could be abused, and therefore needs more discussion and debate

Ashutosh Kaushik, a former Bigg Boss 2.0 winner, has approached the Delhi High Court to avail his "right to be forgotten". In his petition, Kaushik has sought the court's permission to remove posts, videos and articles from the internet relating to his drunken driving case of 2009 and altercation at a cafe in 2013.

The petition comes in the wake of the recent Madras High Court observation that an accused person who is eventually acquitted should be entitled to have his name redacted from all court orders to uphold his right to privacy.

The debate around the right to be forgotten has revolved around ideas of individual freedom, liberty, informational self-determination and upholding constitutional freedoms in a democracy. It has been argued that any individual must not be perpetually reminded of their unfortunate past.

The right to be forgotten stems from the understanding that the internet today can act as a permanent record of an individual's past life, thereby exerting undue influence on their present life. It sounds reasonable to have one's publicly available personal information removed from internet search databases once it's no longer relevant, is out of date, serves no sufficient legitimate interest to the users of the search engine or, if the information, in the first place, was obtained without consent.

However, the above has not considered the pitfalls of recognising such a right. Recognising the right to be forgotten as a fundamental right will have ramifications for the right to access information and meaningful discourse in deliberative democracies. It could be abused to regulate the mind, memory and thoughts of citizens, to eventually rewrite history, create ill-informed citizens and disproportionately benefit the influential.

There are three problems with the idea. First, it grants too much power to the executive and is prone to severe abuse. Second, it is akin to censorship, and finally, it lacks a scientific rationale.

We need to understand that individual requests to take down information from the internet will be assessed based on subjective terminologies such as "information being no more relevant" or "not serving any legitimate interest".

Weighing an individual's right to privacy against a citizen's right to know and then subsequently deciding whether the publicly available information is 'inadequate, irrelevant or excessive' grants disproportionate power to the executive. It will increase executive control, and governments could use this to take down uncomfortable facts, thereby curbing dissent and reducing counter-narratives.

Taking away the ability to access information is akin to censorship and is based on infantilising the human brain as incapable of distinguishing between right and wrong. It also inevitably increases information asymmetry among the citizens. Censorship in a democracy must always qualify a very high bar and should be an exception instead of a norm. The right to be forgotten institutionalises censorship on the web and makes it a norm.

The idea that specific published material might have no social value and should therefore be censored is misplaced and misconstrued. It ignores several other stakeholders and overlooks their prospective interest in the information in question. Furthermore, there are limits to controlling one's life and what is said or published about oneself. The internet gives all of us a right to respond and ensure that a counter-narrative exists. A right to obscurity by way of censorship should therefore be the last choice in a democracy.

Most importantly, humans are conditioned to want to remember. The right to memory is a basic right of every individual and cannot be stifled. Granting people the right to take down information about themselves from public platforms downplays this human behaviour. It trivialises emotions and attempts to regulate our minds, thoughts, and, maybe even worse, our memory.

What binds the three problems identified above is that they all fall within the larger umbrella of a recent trend to rewrite history. Rewriting history not just by adopting manipulative and unscientific means but also by a slow yet conscious effort to discourage discourse, shrink spaces for constructive criticism and limit avenues for historical research.

Kaushik's past might not be relevant for him anymore, but it is for legal researchers, policy analysts, police personnel, prospective employers, partners, etc.

Through the General Data Protection Regulation (GDPR), the European Union has already recognised the right to be forgotten wherein the controller of the data is now subject to statutory erasure obligations and is supposed to comply with the data subject's right to erasure.

The Personal Data Protection Bill, 2019, proposed by the Indian Parliament, also recognises this right. Although Parliament is yet to pass the bill, several High Courts have started to acknowledge the growing debate around recognising this right. It will be interesting to see the courts constructively address these concerns.

(The writer is an Impact Fellow at Global Governance Initiative and is from the National Law University, Visakhapatnam)

Check out DH's latest videos: