Reflections on the Right to be Forgotten Part II

From the previous post, there is no doubt that the preliminary ruling of the ECJ on the right to be forgotten holds some merit that clearly resonates with the EU Data Regulations Directive. As the ECJ established, since internet search engines index data from across the internet so that they can make them available to people based on specified search requests and since such indexing activities also serve a significant economic interest to the search engines, they are seen as processors and controllers of data and therefore, have a duty to consider requests by individuals to have search results concerning their personal data altered .

Whilst a lot has been written about the implication of this to free speech, free expression, the burden on search engine operators, the EU through its commission and courts has stated that such application of the right to be forgotten would be on a case by case basis, so as to balance the rights concerned in each instance. One line of admonition is that the ECJ take care so that in the protection of the right to be forgotten, history is not rewritten.

What would be the prevailing sentiment if victims of District 6 in Cape Town woke to find their history on forceful evictions rewritten? Would Nigerians want to forget the murder of Ken Saro Wiwa or the Nigerian civil war? Different views would be taken depending on the subjectivity and sensibilities of individuals. However, every progressive society has a duty to ensure that its history is retained. More so is the need to learn from the successes and mistakes of history.

Without taking away the legitimacy for information on a person to reflect their current social standing (a.k.a. the right to be forgotten) in some instances where there are historical matters of importance or matters of National interest at play, what may be required is for search engines to ensure that new information on a person also appears in searches. This may also require deliberate steps by those persons implicated by their past to update their current social status on the Internet. As a result of these multiple interests at play, our domestic legal also systems need have adequate frameworks to protect the freedoms associated with the preservation of history, especially on the Internet. In addition, these systems must also provide the necessary legal backing to protect the privacy of individuals on the Internet.

In the light of the developing Internet eco-system in Nigeria, there is need for the constitutional right to Privacy to be given effect through an Act of the National Assembly. There is also the need for robust legal frameworks that seek to protect Internet freedom. The current Nigerian system would also require judicial training that delves into the intricacies of Internet operations with the view of enabling judges to confidently and sufficiently adjudicate on the conflicting rights and interests that are at play on the Internet.

Post contributed by Seember Nyager

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