Who actually needs 'right to be forgotten'?
Aulia Dwi Nastiti
Visiting predoctoral research fellow at the Equality Development and Globalization Studies, Northwestern University
Last month the government finally completed a long-overdue amendment to the 2008 Electronic Information and Transactions (ITE) Law. Alongside a few improvements to fix a vague defamation clause, there is an addendum worth noting: the clause for “the right to be forgotten”.
The ITE Law now allows citizens to request a court order to have information that compromises their privacy or unjustly damages their reputation removed from the internet.
This clause is said to adopt a European approach to data privacy protection. The legal concept of this right is rooted in French law, which recognizes “the right of oblivion” — allowing the rehabilitation of an ex-convict’s reputation. The EU expanded its scope to cyberspace and granted individuals within EU jurisdiction with the right to prohibit search engines from linking to unwanted personal content.
Since its introduction in Europe circa 2014, the right to be forgotten has ignited a debate over the right to privacy vis-à-vis the freedom of speech — two exigent issues in the digital age. Similar contention has now arisen in Indonesia.
While Communications and Information Technology Minister Rudiantara claims the addendum is “an improvement” for “the previously unacknowledged rights of personal data”, this sentiment does not resonate with civilian groups. The Institute of Criminal Justice Reform (ICJR) fears that the regulation will be misused, for instance by those who are running for office and hiding a criminal record — a matter of public importance. The Legal Aid Institute for the Press (LBH Pers) has denounced the new law as impeding press freedom as it gives the government greater authority to suppress information.
These are perfectly reasonable concerns. The Indonesian regulation goes beyond that of Europe in limiting access to information. In Europe, the law is specifically designated to search engines — not original websites — to avoid conflict with the right to freedom of the press. Thus, more accurately, it is the right to delist. In contrast, the Indonesian law entails the compliance of all content providers — including digital apps and foreign news sites. Meanwhile, a concrete mechanism to keep freedom of the press intact remains absent.
Not only is the rule detrimental to legitimate journalism, its workability is also dubious. The ITE Law obliges individuals to have a court order to seek removal. The complex procedure and poor bureaucracy for accessing the court system — let alone the questionable credibility of our law enforcers — cast doubt on the feasibility of exercising this right, particularly for ordinary citizens.
What about the situation in Europe? There, the ruling compelled Google to launch a channel where residents can file a direct request (with Google granting approval). Although this approach is criticized for outsourcing authority to private corporations, Google appears to apply the rule to protect privacy. Based on Google’s Transparency Reports, around 95 percent of granted requests have concerned the removal of unwanted private information on social media — as opposed to only 5 percent comprising public records regarding political figures or serious crimes.
It is also interesting to note that the issuance of the right to be forgotten in Europe was triggered by a case — Gonzalez v. La Vanguardia — where a private citizen filed a complaint against a newspaper to delete online news about his past bankruptcy. The European Court of Justice (ECJ) refuted his claim against La Vanguardia but ordered Google to remove the news link from its search results.
Let’s take a closer look at the ITE Law’s amendment process. Intriguingly, the right to be forgotten clause appears to lack a legal precedent; it may even appear to be out of the blue. To my knowledge, Indonesia has had no precursor parallel to that of the Gonzalez case. Furthermore, the issue of the right to be forgotten is barely touched on in the ITE bill’s academic draft.
Rudiantara has only stated that the inclusion of the clause is from a House of Representatives proposal. According to the House, the purpose of duplicating the European approach is to accommodate people’s interests and protect privacy. If that is truly the case, why impose a convoluted mechanism to exercise that right? Besides, the government should have conducted a public assessment to establish the extent of any necessity to adopt such a regulation.
The government’s case on its version of the right to be forgotten is unconvincing. The unprecedented rule, along with complicated procedures, raises valid suspicion about its impartiality and viability. It seems to me that the adoption of this clause is in favor of the elite’s interests, instead of those of lower-income groups.
To ensure justice, it is imperative to draw clear boundaries between privacy and public interest. The internet should remain a prime channel to provide transparency of public information, including that of politicians who occupy public office — and hence are tax-funded. Also, there must be no room at all for powerful human right abusers to erase accessible reports of their crimes.
The careless design of the 2008 ITE Law, with its vagueness, should be a lesson learned. Without careful deliberation, the amended ITE Law will likely end up in the same hole — misguided in principle and unworkable in practice. In other words, borrowing Jonathan Zittrain’s term, such a law is a “very bad solution to the real problems”.
Aulia Nastiti is a 2016 Arryman Fellow in equality development and globalization studies at the Buffett Institute, Northwestern University, the US.
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