User NOT forgotten? On the Conundrum of Rights to ‘Digital Privacy’ and ‘Life’.

Introduction

nainaṃ chindanti śastrāṇi nainaṃ dahati pāvakaḥ

na cainaṃ kledayantyāpo na śoṣayati mārutaḥ [2:23, Bhagavad Gita]

The 23rd verse in the second chapter of the Bhagavad Gita describes the characteristics of the atman, or soul, and emphasises its eternal, imperishable nature. The notion of (the soul) being eternal, never-dying is relevant in today’s digital era as well: in the form of our information being eternally present in cyberspace.

It is interesting to analyse how this eternal presence of our most sensitive information creates a conundrum of human rights from the legal lens. This article discusses how the ‘right to privacy’ affects the ‘right to life’ including the right to live with basic human dignity.

The Right to Privacy

The ‘right to privacy’ as a fundamental human right has been adopted by the ICCPR vide Article 17. The Universal Declaration of Human Rights provides for the same in Article 12, and the European Convention on Human Rights mentions it in Article 8. The right to privacy is also exercised at domestic levels globally.

Privacy can be understood as having two fundamental aspects: (1) being the power to keep secret certain information in the private sphere, and (2) the power to control the public use of that information, including when (if at all) it is made public.

The ‘public use’ of sensitive data often is not in the control of the netizens. However, the applicability of the ‘right to be forgotten’ might enable end users to have ‘control’ over how much or little of their data is made public on the ‘world wide web’.

What is RTBF?

As has been elucidated above, while the ‘right to privacy’ as a fundamental human right has been accepted by international instruments, the concept of the ‘right to be forgotten’ (RTBF) is relatively novel. The right to privacy is concerned with information not intended for public use whereas the ‘right to be forgotten’ is more about forgetting information already made public.

The term ‘right to be forgotten’ gained popularity consequent to the landmark judgement in Google Spain SL, in which the Court held that “internet search engines are subject to affect the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name”.

In a similar vein, the Supreme Court of India in Justice K.S. Puttaswamy (page 529, para. 64), held that “the impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The foot prints remain”.

It is the presence of these digital ‘foot-prints’ that has caused uneasiness to netizens wanting to be ‘forgotten’, at least to the extent they wish. In a more recent stand taken by the High Court of Calcutta, the right to privacy entitles a person to carry secrets to the grave and personal space includes the right to be forgotten. It can be therefore inferred that the ‘right to be forgotten’ is being recognised as a privacy right.

Current Status of RTBF

Though various legal systems across the globe mention the ‘right to be forgotten’ as a privacy right, the ‘right to be forgotten’ is however not recognised universally. American courts, for one, do not take cognisance of the ‘right to be forgotten’.

Interestingly, though Europe is considered to be the cradle of the concept of ‘right to be forgotten’, in one case, the EU’s top court ruled that Google does not have to apply the ‘right to be forgotten’ globally. In Garcia v. Google Inc., the Court observed that the ‘right to be forgotten’ is not recognised in the United States as it is in Europe. This lack of the universal applicability of the ‘right to be forgotten’ might affect other human rights.

Thus, the exercise of, or the omission of the ‘right to privacy’, including the ‘right to be forgotten’ impacts one other fundamental human right, being the ‘right to life’.

Rights to Life and Dignity

The rights to life and dignity are enshrined in the Universal Declaration of Human Rights in Articles 3 and 1 respectively. The right to life encompasses within it, the right to live with dignity. Human dignity is inviolable. It must be respected and protected.

Moreover, human dignity is enshrined in the preamble of the 1948 Universal Declaration of Human Rights as “the inherent dignity and of the equal and inalienable rights of all members of the human dignity”. To live with basic human dignity, employment is essential. It has been asserted by the Supreme Court of India that the right to life includes the right to livelihood, and refusal to the right to employment is synonymous with deprivation of the right to life.

The ICESCR recognizes the right to work, which includes the right of everyone to the opportunity to gain his living by work. While all theories advocate such rights, reality is quite the contrary. Employers are reluctant to hire people with criminal records.

Digitalisation has made the task of thorough background-checks of prospective employees easy for the employers, but not for the petty thief whose name appears in search engines with details of his criminal record of random act of stealing, making him less desirable for prospective jobs.

Thus, such detailed information, if not removed from the internet, adversely affects job seekers. The easy availability of online databases lets employers investigate everyone, which may jeopardize a data-subject’s  finances and career.

Implications for Convicts of International Crime

The non-recognition of the ‘right to be forgotten’ across the globe, further limits the enjoyment of the ‘right to privacy’ and the ‘right to life’ holistically. By clicking here and here, readers will be directed to the cases of Lubanga and Al Bashir respectively, held at the ICC, with all the details of the accused, including their photographs, their criminal liabilities as well as their entire background.

While detailed information on case laws is essential for lawyers or law students and professors, such sensitive information regarding the convicts harms their ability to re-enter society even after they have served their sentence.

This is specifically true in relation to perpetrators accused of international crimes like genocide, crimes against humanity and war crimes, as even after serving their penalties, their re-integration into society is rendered redundant as their history is not only made public but is also available online, respecting the right of access to information.

This mars not only their right to privacy but also their right to live with basic human dignity. Further, data on search engines like Google pops up in a fraction of a second which is technologically, quite a feat, but has serious human rights concerns.

How Right to Privacy Affects the Right to Life?

The skyrocketed advancement in information and technology is not without consequences. Cases of data leakage, cybercrime, and other online scandals are abundant. On the other hand, consumers are becoming more aware of how companies are abusing the system and that, in this abuse, there’s definitely a human rights issue to be dealt with. Simultaneously, States are in the process of live streaming of court cases.

The apex Courts of the US, Canada, Brazil, South Africa, and India upload/stream the cases they hear. This live streaming of cases or their online posting poses grave issues in respect with the right to privacy. The information that exists in cyberspace is enormous, with most netizens being totally clueless as to who has their information.

The malicious use of personal data may jeopardise career and personal safety. Even if the use is not malicious, but legally adopted, like the live streaming of court cases, the litigants’ identities are made public which violates the right to privacy.

Also, as discussed above, search engines facilitate background checks that may not be so fruitful for job seekers, especially when they have criminal records, and such records pop up while name-searching them.

Possible Solutions?

It is evident from the above discussion that the ‘right to privacy’ cannot be enjoyed completely without universally establishing the ‘right to be forgotten’ as a fundamental human right. Jurisdictions at domestic levels should possibly avoid live streaming of case hearings, for one.

Alternatively, in case of misuse of such live streaming, suo motu proceedings and contempt charges be initiated against wrong doers, as requested by the GHCAA (Gujarat High Court Advocates Association) in its letter to the Hon’ble Chief Justice of Gujarat High Court.

Internationally speaking, redaction may be applied even for the accused, just as it is applied as a witness protection measure, to protect the identity of the accused, thus safeguarding their human rights to privacy and life.

Conclusion

Human rights are intrinsically connected and cannot be viewed in isolation from each other. Though human rights are being violated in so many places, we don’t give up because we know respect for human rights and human dignity is a basic condition for peace.

While the ‘right to privacy’ is enshrined as a fundamental human right in international law, the ‘right to be forgotten’ also needs to be incorporated within the ‘right to privacy’ for the efficient and holistic enjoyment of the ‘right to life’, including the ‘right to human dignity’.

This article has been submitted by Dyuti Dholakia, an Advocate.