The Right To Be Forgotten: The Benefits of Protection and the Potential for Abuse

The Internet is a free place for the public to store data and report events. Although there are various regulations that seek to manage and limit these freedoms, in reality, Internet technology is developing relatively faster than legal provisions can keep up.

Information contained on the internet can be in the form of data that we upload ourselves or uploaded by others. Embarrassing photos that we post ourselves can be easily deleted. However, what if the photo is copied by someone else, or even becomes viral or a meme, and it is difficult for us to ask those people to delete it one by one. What if those embarrassing photos give us unwanted fame or even disrupt our careers? The same questions apply to other types of information, such as tweet, status updates, as well as news reports.

Everyone has a past and maybe these events are no longer relevant to our lives today. Internet and cloud technology makes it difficult for us to bury the past. Thus, the emergence of the 'right to be forgotten' is a natural legal development in this digital era.

What is the 'right to be forgotten'?

The right to be forgotten or the right to be forgotten has been a topic of discussion in the European Union since 2006. According to Mantelero Alessandro, professor of Civil Law from Italy, the right to be forgotten stems from an individual's desire to determine the direction of their own development of life autonomously, without being constantly stigmatized as a consequence of certain actions they have performed in the past.

This right comes into force when a Spanish citizen feels that the news about a debt in his past is no longer relevant to be reported, because he has paid off the debt. He sued Google to remove all the news links from search results as a form of his right to be forgotten. Google defended itself against the request because they wanted to be a neutral information platform. But Google lost and this right to be forgotten set a precedent that applies to all data controllers in the European Union.

It should be noted that in this case, the deletion of the link is only done on the search engine, while the link itself can still be found on the news site in question. With the right to be completely forgotten in the European Union, this right can also be applied to news media and social media.

The debate about the right to be forgotten is actually fundamental in legal concept and philosophy. When reduced to a discourse between the right to be forgotten versus the right to freedom of expression, human rights can be a double-edged sword. Both rights are human rights. Many criticize the right to be forgotten as a form of censorship and rewriting of history.

Right to be forgotten vs right to information

The right to be forgotten is not the same as the right to privacy. The right to privacy is the right to personal information that can be used to identify an individual's identity and potentially endanger the safety of that individual, such as addresses, telephone numbers, health records, and others. While the right to be forgotten relates to information about a subject on the internet at a certain time period.

Despite the controversy, the right to be forgotten can be put to good use. Victim of revenge porn or immoral acts can exercise this right to stop, or at least limit, the distribution of content about him on the internet. Gen Z teens or babies who already have their own Instagram account because their parents, who regret the existence of their digital content, can also exercise the same right to remove the content.

However, what about a doctor who has committed malpractice or medication that has been in the spotlight? The doctor could have used the right to be forgotten to bury information about his past malpractice. The biggest disadvantage, of course, is for consumers who need to make informed decisions.

On a smaller scale, if we have been reported to have committed a crime or have embarrassing content on a public account or site, and we don't want that information to make it difficult for us to find work, should the right to be forgotten be used in this case? Does the employer have the right to know this information, even if we feel the information is no longer relevant?

This right to be forgotten has been used by Dejan Lazic, pianist from the European Union, to delete bad reviews about the music on the Internet. The application of the right to be forgotten is very real in public life on the internet and has a direct effect on the public's need for information.

How is the right to be forgotten in the ITE Law Amendment to be set?

Last October, the DPR passed amendments to Law Number 11 of 2008 concerning Information and Electronic Transactions (UU ITE). One of these changes is the addition of the provisions of Article 26 regarding the protection of personal data on the internet. Based on the Kominfo report, the addition of Article 26 is: (a) every Electronic System Operator is required to delete irrelevant Electronic Information under its control at the request of the person concerned based on a court order; and (b) each Electronic System Operator is required to provide a mechanism for deleting Electronic Information that is no longer relevant.

Until now, I haven't been able to get the original text of the Amendment to the ITE Law, so I just rely on Kominfo news. There are a few things to respond to:

(a) The definition of 'irrelevant' is too ambiguous. What information is still relevant and irrelevant? Will the Amendment to the ITE Law define the measure of 'irrelevance'? Learning from developments in the European Union, there needs to be an exception for information uploaded in connection with journalistic activities and art reviews, so that citizens' rights to information are guaranteed. EU Courts explicitly clarify that the right to be forgotten is not absolute and will always need to be balanced with fundamental citizen rights, such as freedom of expression. The Kominfo report does not show this exception.

(B) Who is an 'Electronic System Operator'? Based on the definition in the ITE Law, the organizers in question will include all data controllers on the internet, such as search engines and digital media, including social media and personal blogs. However, this provision becomes invalid for search engines and non-Indonesian media due to different jurisdictions. If the Indonesian government does not succeed in promoting OTT's obligation to have a legal entity in Indonesia, the right to be forgotten cannot be applied to foreign OTTs.

(C) What does 'delete' mean? Does deleting mean just removing the link, or deleting the page in question altogether?

(D) Exercising the right to be forgotten requires a court order, which is time-consuming and costly. The positive side is that the Electronic System Operator cannot avoid it. Court rulings also ensure that the right to be forgotten cannot be taken for granted. On the other hand, if Electronic System Operators object to deleting data, they must take an appeal in the Supreme Court. The judge as a determinant of what is 'relevant' has a new burden to understand the internet, including the issue of the integrity and distribution of information on the internet, as well as its relationship to the social context of the information. The absence of precedent also has the potential to result in the determination of judges differing from case to case, thus resulting in legal uncertainty.

(E) Electronic System Operators are required to regulate the mechanism for deleting Electronic Information that is no longer relevant. However, it is not clear whether the Amendment to the ITE Law will determine the standard of the mechanism. Is it possible that this matter will be fully submitted to the Electronic System Operator?

(f) What if the Electronic System Operator refuses to delete the relevant Electronic Information? Can they be subject to fines or other legal remedies? The Kominfo report does not describe the sanctions.

I also emphasize the need for additional mechanisms so that the right to be forgotten is not abused by stakeholders. Article 27 paragraph (3) regarding insults and defamation on the internet tends to be misused by officials in fighting criticism of the government. The right to be forgotten provision has the potential to be abused in a similar context.

Several national media have expressed their concerns about this 'censorship'. Governments and law enforcement need to offset these concerns by defining clear corridors in the exercise of the right to be forgotten. Otherwise, the right to be forgotten will only add to the homework, instead of providing a solution for internet security and convenience.

- Disclosure: Fallissa Putri, SH is a legal consultant and advocate from Klikonsul, a legal and business consultant in the creative economy, including information technology. Further information can be read at http://klikonsul.com