Damian, Jude Thaddeus M.

Juris Doctor 3
Independent

Remember Me Not:
The Right to Be Forgotten as a Universal Human Right

I. INTRODUCTION

It is not a fraught notion that information is easily accessible with the move of a
thumb or a flick of a finger with the advent of information being made available online
through the Internet. It is also established that information carries with it not only binary
codes or mathematical data but also interpretations, character, and analysis. In certain
instances, private information accessed through the Internet bears a character or
reputation of a person or an entity, either true or falsified, which one would prefer to be
forgotten or erased from being attributed to him rather than rehashed. It is a given that
with the unabashed access to information an enduring stigmatization of reputation and
character attached with consented or unconsented information is permitted. 1
Hence, in line with the objective to promote the citizens’ right to privacy and
protect the citizens’ reputation and character, several states and governments have
legislated laws which allows unwanted and damaging private data to be delinked or
disconnected from the person of the data subject in the internet and other directories.
This is commonly named as the right to be forgotten. The European Union (“EU”)
recognizes such contended right which confers the allowance for citizens to submit
requests to search engines such as Google to remove, delete, or “delink” their
association with certain Uniform Resource Locators or URLs. 2 Generally, the right to be
forgotten entails the right to have private information delinked from Internet searches
and other directories.
The European Union through its Data Protection Directive (“Directive”) of 1995
spearheaded the international advances of the right to be forgotten. This Directive
obligates all member states of the EU to “legislate to ensure that personal data are
processed fairly and lawfully.”3
The right also emerged in the May 2014 precedent from the European Court of
Justice, “Google Spain SL v. Agencia Española de Protección de Datos and Mario
Costeja González.”4 It was decided by the European Court of Justice in this case that
European citizens have a right to request commercial search firms that gather personal
1
Michael L. Rustad & Sanna Kulevska, Reconceptualizing The Right To Be Forgotten To Enable
Transatlantic Data Flow, 28 HARV. J.L. & TECH. 349, 353 (2015), available at
http://jolt.law.harvard.edu/articles/pdf/v28/28HarvJLTech349.pdf.
2
Factsheet on the “Right to be Forgotten” Ruling (C-131/12), EUROPEAN COMMISSION,
http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf.
3
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection
of Individuals with Regard to the Processing of Personal Data and on the Free Movement of such Data,
1995 O.J. (L 281/31), available at http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?
uri=CELEX:31995L0046&from=en.
4
Case 131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos and Mario
Costeja González [2014] ECR I-000, nyr.
information for profit to remove links to private information when asked, provided the
information is no longer relevant.
The right to be forgotten has also been recognized by a Tokyo District Court
which ordered Google to remove titles and websites attaching the name of a man who
asserted that his privacy rights were violated due to articles alleging a past criminal
activity. The involved articles were already a decade old and were claimed to have
already lost their relevance. It was declared by the Court that the man suffered actual
damages due to the URLs and also considered that with the removal of the links,
Google would not be given “an unjust disadvantage even if it is obliged to remove the
search results.”5
South Korea has also implemented a legal right to be forgotten which consists of
a guidelines which allows data subjects to request for the delinking of URL links from
search engines similar to the EU Directive. The guidelines, however, also include the
appointment of a family member who can exercise the user’s right on their behalf and
after the user’s death.6
In the Philippines, the right to be forgotten is also recognized under Republic Act
No. 10173 of the Data Privacy Act of 2012. Under this provision of law, the right to be
forgotten which allows the data subject to order the suspension, blocking, removal or
destruction of his or her personal information from a personal information controller’s
filing system if there is a discovery and a substantial proof of the following: 1) That the
personal data is incomplete, out-dated, false, or unlawfully obtained; 2) That the
personal data is being used for unauthorized purposes; 3) That the personal data is no
longer necessary for the purposes for which they were collected; or 4) That the data
subject withdraws his or her consent or objects to the processing.
Inclusive of the right to be forgotten, data subjects also have the right to “dispute
the inaccuracy or error in the personal information and have the personal information
controller correct it immediately,” similar to the right of rectification in the EU Directive.

II. MAIN PLEADING

The international recognition of the right to be forgotten is a springboard for its

implementation as a universal human right. Aside from this consideration, the right to be
forgotten should be considered as a universal human right for the following reasons:

A. The right to be forgotten should be recognized as a universal human right

as it is a manifestation of the right to privacy and the right of an individual
to control their personal information and identity in the digital age, not
contrary to freedom of expression.

Article 12 of the Universal Declaration of Human Rights (“UDHR”) clearly

expresses that there shall be no arbitrary interference with one’s privacy nor shall one
5
Tomoko Otake, ‘Right to be Forgotten’ on the Internet Gains Traction in Japan, JAPAN TIMES (Dec. 9,
2014), available at http://www.japantimes.co.jp/news/2014/12/09/national/crime-legal/right-to-be-
forgottenon-the-internet-gains-traction-in-japan/#.VkenSq6rRE5.
6
James Lim, South Korea Releases Right to Be Forgotten Guidance, BLOOMBERG BNA (July 13,
2016), http://www.bna.com/south-korea-releases-n57982070847/.
be subjected to attacks upon his honor and reputation. 7 Article 19 of the same
declaration protects and declares the freedom of opinion and expression.
The precedent for the right to be forgotten as implemented in the European
Union upholds both the freedom of expression while allowing the protection of privacy
and reputation. In its current circumstance, the right to be forgotten does not censor
information or expression. Rather, the information that a data subject requests to be
delinked from is not erased, but rather remains on the Internet unaltered and
discoverable. Search engines are mandated to adjust their systems so that members of
the general public are not directed to a specific site based upon the specific name or
keyword.
The Court decision in González mandates a case-by-case evaluation in delinking
information about a data subject. The Court “explicitly clarified that the right to be
forgotten is not absolute but will always need to be balanced against other fundamental
rights, such as the freedom of expression and of the media.” 8
The case resulted to the delinking of news articles from search results for
Gonzales. However, it did not order the newspaper to change or delete media and
information relating to the published article, thus providing a clear distinction between
privacy rights and freedom of expression.9
Furthermore, numerous instances of abuse from government and private
companies through the act of digital spying and unlawfully gathering personal
information is contrasted with the right to delink oneself from data inputted online. This
gives back the power to the data subject and combats the unauthorized use of the
individuals’ information.

B. The right to be forgotten should be recognized as a universal human right

as it only involves personal information which does not carry public
interest value.

The digital era promises easy access and ready information which may be
personal to a data subject. The relevance of information which may be digested in the
Internet goes beyond public interest and also includes private information mined without
the consent of data subjects or retrieved unlawfully. Such are the case with revenge
porn and other digital malignancies. With this in consideration, the trade-off between
data subjects and the consumers or commercial search engines are slighted to unjustly
favor the latter rather than the former. The vast amount of private, less intrinsic, and
possibly harmful information made available online, when delinked, offers a larger relief
to a data subject with a minimal burden to the public and commercial search engines.
As stated in an earlier discussion involving a Tokyo District Court, the involved
articles alleging unproven crimes in the case were delinked from the individual as the
articles were a decade old and were claimed to have lost their relevance to the public. It
was declared by the Court that the man suffered actual damages due to the URLs and
also considered that with the removal of the links, Google would not be given “an unjust
disadvantage even if it is obliged to remove the search results.” The failure to recognise
7
Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948),
available at http://www.un-documents.net/a3r217a.htm.
8
Factsheet, supra note 2.
9
Id.
the right to be forgotten as a universal human right could indefinitely distort the
reputation of a data subject.

III. CONCLUSION

To conclude, the right to be forgotten must be conferred the power as a universal

human right. With the prevalence of widespread digital information, it offers a relief to
those whose rights to privacy are abused. As a right, it is still compelled to co-exist with
other rights such as that of the right to information and the freedom of expression. The
fear of its abuse must not take away from the benefits it provides; rather, it must be a
motivation to correct the instance of abuses.