While search engines do not distinguish between information and personal information, they allow personal information to be accessed easily. In 2014, Court of Justice of the European Union (CJEU) recognised the role of search engines in making personal information easily available and held that individuals had a "right to be forgotten".
The CJEU held that under certain conditions, individuals could ask search engines to de-list results that were "inaccurate, inadequate, irrelevant or excessive". The ruling came after a Spanish national requested that certain newspaper reports, published under an order from the Spanish labour ministry, be de-listed from Google's search results. These reports revealed details of bankruptcy proceedings against him that had been resolved over a decade previously. In affirming the right to be forgotten, the court was cautious in stating that the right is not absolute, and must be balanced with the freedom of speech and expression.
The Delhi High Court is currently hearing a case on the right to be forgotten. In this case too, the petitioner has sought de-listing of a reported court judgment that has been lawfully re-published by a website. If successful, it could set a precedent for Indian Internet users to demand that search engines de-list personal information about them.
In the digital age, this right is an important facet of an individual's right to privacy, allowing one to control the extent of information available about them. But indiscriminate de-listing can have a disastrous effect on press freedom and the public's right to know. Therefore, it is important to define the contours of the right in a way that balances privacy and the right to speech and expression.
Since May 2014, Google has received requests to de-list over 1.7 million URLs. Of these, 43.1 per cent have been removed. Initially, Google was criticised for its opaque process for removal of results. Several news agencies criticised the corporation for deciding requests without due regard to public interest. These concerns highlight the problem with a private corporation assessing the legitimacy of requests and performing constitutional functions. In India, this problem will be exacerbated by the fact that there is no data protection authority that an individual or website owner could approach if it feels that a search engine erred in its decision.
Moreover, Google is fiercely opposed to implementing the right across all its domain names, including google.com, limiting the de-listing to Google's European domains. Considering that one could easily access the removed content by using google.com, the move was criticised for undermining the 2014 ruling. Earlier this year, Google finally agreed to implement the right to be forgotten across all its domain names, as long as the search took place within Europe.
Some newer avatars of the right to be forgotten also appear problematic. For instance, Italy's highest court recently blurred the distinction between the source of a news report and its indexing on Google. It held that an article in an online news archive automatically "expires" after two years and ordered that it be deleted from the website itself. Moreover, Russia's new data protection law specifically allows public figures to have their information de-listed. This is in stark contrast to the 2014 CJEU ruling which recognised a public interest in information pertaining to public figures.
However, a flawed implementation of the right cannot be justified as a ground for not recognising it. Its reduction into a debate on privacy versus free speech lacks nuance. Technology has grown by leaps and bounds in recent decades. The advantages of the Internet must necessarily correspond with safeguards to prevent unwarranted privacy intrusions. A survey showed that almost eight out of 10 employers run a Google search for individuals' names prior to hiring them, making it an important tool against professional stagnation or reputational harm.
Yet another aspect is asymmetry in journalistic reporting, with arrests getting more media attention than acquittals. Even if exonerated by a court of law, the timelessness of online memory can pose a serious impediment to a person's overall well-being. Julia Powles of the University of Cambridge has highlighted in a column that the right to be forgotten can be used to address this problem.
The 2014 ruling and Google's implementation of it is restricted to removing results that show when a search is conducted for a particular individual's name. The pages aren't removed entirely and will continue to appear if the search is not specific to that individual's name. Google has also adopted a process to let webmasters know when it decides to remove results. These processes, coupled with an appeals mechanism to a statutory body and independent audits, can serve as important checks to safeguard public interest in information, transparency and accountability.
Ultimately, technology must serve the interests of individuals who use it. At its core, the right to be forgotten is only a right to be de-listed. It is not an attempt to erase information. It merely seeks to make personal information more obscure, giving individuals greater control over their digital identity.
The writer is with the Centre for Communication Governance at the National Law University, Delhi