Do you have the right to be forgotten?

While the idea behind the law is fine by itself, a ‘cut-and-paste’ implementation will only make it a tool to silence critics with.

At the risk of sounding ignorant about Bollywood, I think Zindagi Na Milegi Dobara is one of the finest films the industry has ever produced. A story of three friends and their journeys of personal growth playing out in Spain; I have watched the movie more times than I would like to admit. Every time I think about Hrithik Roshan taking a video call in fluent Japanese and office attire while on a road trip, I crack up.

On a deeper level, the scene serves as a reminder that things, which might seem perfectly natural in one context, cannot be cut and paste into a different situation, without them appearing out of place. For instance, in 1998, a Spaniard named Mario Costeja Gonzalez, experienced financial difficulties and desperately needed money. As a result, he put up a property for auction in a newspaper, and as a matter of chance, the listing went online.

Unfortunately for Mr Gonzales, the internet never forgets. So, long after he had resolved his financial situation, news about the auction was searchable on Google, and everyone who looked him up would assume that he was bankrupt. Understandably, this caused significant damage to his reputation, and he decided to take the matter to court. The case gave birth to the idea of the ‘Right To Be Forgotten’.

A matter of reputation

The idea was cut and paste into an Indian context when a dentist from Kerala was implicated (and eventually acquitted) in a sexual harassment suit. Indian Kanoon, a search engine for Indian law, documented the case.

Similarly to Mario, every time you googled the dentist, the first result would be of the sexual harassment case filed against him. As per the website’s policy, they did not facilitate removals since court cases were a part of the public record. In all fairness, an online repository for court documents would not be of much use if it started to take down content for everyone who had suffered reputational harm. Learning from Mario’s experience, the dentist filed a ‘Right To Be Forgotten’ plea.

Mario’s case and the dentist’s plea are pretty similar. You can cut and paste the ‘Right To Be Forgotten’ argument and not have it seem out of place. However, when implemented in the Indian context, it can seem out of place, much like Hrithik Roshan saying ‘Moshi Moshi Yamamoto San’ in the Spanish foothills!

Let me explain. When looking at the Right To Be Forgotten, courts have made an exception for people who live their life in the public eye. The right cannot trump the public’s right to access relevant information. Companies responsible for ‘forgetting’ generally get the power to decide what classifies a figure as public.

However, in India, instead of tech companies, it is Adjudicating Officers appointed by the government who make the call on Right To Be Forgotten requests. And while neither of those parties is a perfect solution for people looking to assert their right, there is a conflict of interest when a party can act as a batsman and an umpire both.

As ‘Rest of World’ (an online global technology publication) points out, the law could help serve as a tool to silence critics and protect the interests of the powerful and the wealthy.

I find it hard to argue that India should delay the onset of a privacy law longer than it already has. However, we should be careful when borrowing from other contexts. As the possible second-order implications of the Right To Be Forgotten demonstrate, things might end up very differently if we do not make the requisite adjustments.

The writer is a policy analyst working on emerging technologies. He tweets @thesethist.

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