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Conceptualising a Right to Oblivion in the Digital World* A human rights-based approach

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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2064503

Conceptualising a Right to Oblivion in the Digital World*

A human rights-based approach

Electronic copy available at: http://ssrn.com/abstract=2064503

Conceptualising a Right to Oblivion in the Digital World*

A human rights-based approach

Napoleon Xanthoulis

BA MS LLB (Hons)

napoleon.xanthoulis.09@ucl.ac.uk

University College London

Faculty of Laws

Contents

1. Introduction ………………………………………………………………………………………………………………………. 2

2. The right to oblivion as a modern phenomenon …………………………………………………………………… 3

2.1 A Fictional Desire? ……………………………………………………………………………………………………….. 3

2.2 To Forget or not to Forget: That is the Question (maybe) …………………………………………………. 4

3. The right to oblivion in the digital world ………………………………………………………………………………. 6

3.1 Definitional and terminological difficulties………………………………………………………………………. 7

3.2 The inefficiency of the current data protection mechanisms ………………………………………….. 10

4. The right to oblivion in the EU: A proposal for a “right to be forgotten and to erasure” …………. 12

4.1 Basic remarks …………………………………………………………………………………………………………….. 12

4.2 The “right to erasure” …………………………………………………………………………………………………. 14

4.3 Particular limitations and exceptions to the “right to erasure” ………………………………………… 15

4.4 Where is the “right to be forgotten”? …………………………………………………………………………… 15

4.5 Preliminary conclusions ………………………………………………………………………………………………. 17

5. Conceptualising a human right to oblivion …………………………………………………………………………. 18

5.1 Oblivion as a right ………………………………………………………………………………………………………. 18

5.2 Oblivion as a human right ……………………………………………………………………………………………. 19

6. A systematic attempt to define the scope of a human right to oblivion ………………………………… 21

6.1 The relationship between the right to oblivion and the right to privacy ……………………………. 22

6.2 The right to privacy as a multidimensional concept ………………………………………………………… 23

6.3 The right to privacy as an instrumental good in the light of Aristotelian philosophy …………… 25

6.4 The right to oblivion as an instrumental good and a specific expression of a multidimensional

right to privacy ………………………………………………………………………………………………………………… 26

7. Addressing the potential threat of human rights inflation …………………………………………………… 29

8. Conclusions ……………………………………………………………………………………………………………………… 32

Bibliography………………………………………………………………………………………………………………………… 34

This paper is based on a research essay written at University College London (UCL), Faculty of Laws under the

supervision of Mr. Colm O’Cinneide, Reader in Law.

Electronic copy available at: http://ssrn.com/abstract=2064503

1. Introduction

According to ancient Greek mythology, Lethe («Λήθη»), better known as Oblivion, was a

river deity, the daughter of Ungratefulness, who flowed in the underworld Hades. People

believed that when the dead reached Hades they were forced to drink Lethe‟s waters to erase

any memory of their previous life1.

Today, after more than two and half millennia, whether forgetfulness is a blessing or a

curse is still discussed as part of a debate on what I am going to term the right to oblivion. In

broad terms, the right to oblivion is presented in the academic debate, prima facie, as the

right of an individual to have full control of the information related to him, particularly in the

digital world; a right that is widely reflecte\d through an individual‟s claim to erasure of such

data. Thus, this is a discussion on a “right to cyber-oblivion”2.

The main aim of this essay is to argue that a right to oblivion should be

conceptualised as a human right and more specifically as an expression of the broader right to

privacy, which itself is approached as a multidimensional concept.

Firstly, I will discuss the right to oblivion as a phenomenon, in other words, how it is

prima facie presented in the current debate. Secondly, I will look at terminological problems

associated with the right to oblivion, examining how these have contributed to the current

conceptual diversity, and how they have so far prevented any systematic attempt to

conceptualise this right. Thirdly, I will explain how the current legal framework fails to offer

a holistic conceptualisation of a right to oblivion and I will argue that a new proposal under

consideration by the EU suffers from the same deficiencies. Fourthly, I will argue that, as the

term itself reveals, the concept should be discussed from a human rights-based approach

rather than from a mere control-based perspective. More particularly, I will suggest that the

Pausanias, Description of Greece, Book 9. 39. 8.

Brimsted K., „The right to be forgotten: can legislation put the data genie back in the bottle?‟ (2011), Privacy

& Data Protection, Vol. 11(4), pp. 6-8, 7.

right to oblivion should be conceptualised in light of the right to privacy, as a

multidimensional concept. Finally, I will address the question of whether introducing a right

to oblivion might contribute further to a potential inflation of human rights.

2. The right to oblivion as a modern phenomenon

2.1 A Fictional Desire?

Arguably, the debate on the right to oblivion is an unavoidable result of the social and

technological evolution of the last decades. In this light, Morin suggests that, as our

information becomes accessible globally and indefinitely, there seems to be “an urgent need

to address personal information management in a socially responsible way […] to put the

user back in control of his digital fate” 3.

On the other hand, there are strong opposing views arguing that what people desire is

not simply the power to control their privacy settings; rather, to gain full control over their

online reputation4. Such an aim, is argued to be merely an unrealistic fantasy in the era of

Facebook and Google5. This argument is further supported by the claim that the complexity

of enforcing such deletion of data would require a hyper-specific set of regulations which will

not succeed in practice6. On the other hand, an individual‟s claim against an Internet Service

Provider (“ISP”) to take any available reasonable measures to delete personal information, is

argued to minimise the difficulties of enforcing such regulations (see section 4.2).

Morin J.-H., Towards Socially-Responsible Management of Personal Information in J.G. Breslin et al. (eds)

Social Networks, BlogTalk 2008/2009, LNCS 6045, Springer (2010), pp.108-115, 108, 110; Also Mayer V.,

Delete – The Virtue of Forgetting in the Digital Age, (2009) Princeton University Press, pp.85-86.

Rosen J., „The Web Means the End of Forgetting‟, The New York Times, 21.07.2010.

Ibid.

Fleischer Peter, „Foggy thinking about the Right to Oblivion‟, 09.03.2011,

http://peterfleischer.blogspot.co.uk/.

2.2 To Forget or not to Forget: That is the Question (maybe)

As the term itself suggests, the concept of the right to oblivion is related to the broad concepts

of remembering and forgetting, the “duality of human memory”7. Should in fact everything

be remembered? Is there some value on forgetting certain information and if so, what should

be forgotten and when? Even though these questions constitute the main areas of dispute

among the authors, it seems that most of the available attempts made to answering them, as

part of the on-going debate to the right to oblivion, have not yet provided a systematic

approach to this problematic.

Firstly, it is suggested that forgetting is a “natural mentation for human beings”8 and

that it provides us with peace of mind, mental growth, and positive human relationship-

building assisting therefore in the establishment of a personal identity9. This value is argued

to be threatened by the development of ICT, as it effectively enforces the idea that everything

should be remembered. However, critics counter that, “the total capture and recall of a

society‟s (or even individual‟s) works and activities has never been, and is unlikely ever to

be, possible”, despite the rapid evolution of ICT technologies10.

Secondly, to be forgotten is argued to allow the opportunity for a “fresh start”11.

According to this view “it is socially beneficial to encourage individuals to reform their lives

[and therefore not] be barred by their past „mistakes‟” when entering into social and

economic life12.Taking the opposite view, Peter Fleischer, Google‟s Chief Privacy officer,

Bannon L. J., „Forgetting as a feature, not a bug: the duality of memory and implication for ubiquitous

computing‟ (2006) CoDesign, Vol.2, No.1, pp.3-15,13.

Murata K., Orito Y., The right to forget/be forgotten, (2001) in Proceedings of CEPE, 6, pp.192-201, 193.

Murata K., Orito Y., ibid. at 194.

Lievrouw L. A., „The Next Decade in Internet Time: Ways Ahead for New Media Studies, presented‟ (2011)

in A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, Oxford Internet Institute,

21-24 September 2011, p.11.

Blanchette J. F., „Johnson D.G., Data retention and the panoptic society: The social benefits of forgetfulness‟

(1998), ACM Policy ‟98 Conference, LSE, p.4

Westin A. F. and Baker M. A., Databanks in a free society: Computers, record keeping, and privacy (1972)

New York: Quadrangle/New York Times Book Company, p.267.

understands the right to oblivion as “an attempt to give people the right to wash away digital

muck, or delete the embarrassing stuff”13. He argues that “history should be remembered, not

forgotten, even if it‟s painful”. According to Fleischer “culture is memory”. One response to

this argument is that human cultures seem to have been built over the course of time through

a process of selective remembering and forgetting, not through total remembering, as this was

simply not possible until recently (and still is not in most parts of the world). Despite this, it

might worth considering that a right to remember as much as possible may have some

benefits to our political system which could themselves be undermined by putting forward a

potential right to oblivion14. As has been characteristically written: “I don‟t want a world

where politicians or demagogues can get their dodgy past involvements with fascism [..] or

whatever quietly deleted or rendered un-findable on Google”15. To the contrary, it has been

suggested that such power to forget and be forgotten is not merely an individual good but in

essence a social value, that benefits the society as a whole, as it allows the independent self-

development of individuals as democratic citizens. In other words, no forgetfulness, no

effective democratic citizens. However, the opposite extreme seems to be equally

unacceptable. “A world in which individuals are not held accountable over time for the

consequences of their actions will not produce the sense of responsibility that is just as

necessary to a democratic society”16. Unavoidably, there will be a balancing act.

Critics have also argued that it is difficult if not impossible to predict what

information might be useful in the future, and that allowing the deletion of data without

careful consideration of its implications in the future might lead to having important

Fleischer Peter, supra note 6.

Edwards L., „The Rights to forget of the right to spin?‟, panGloss, 18.03.2011.

Edwards L., ibid.

Blanchette J. F., supra note 11 at 6.

information “inaccessible, incomplete and/or misrepresentative of reality”17. It is submitted

that this argument may be relevant when it relates to facts and events of public importance or

public policy, but fails to explain how it can justify preventing a person from exercising full

control over his personal information when this can have no consequential implications on

the history of a state or nation.

Finally, other legal arguments have been presented that introducing a right to oblivion

creates a presumption that privacy is more important than other potentially conflicting human

rights such as freedom of speech18, or other values such as journalism and literature, or other

principles such as security or data integrity19. As will be shown in section 4.3, future

proposals on a right to oblivion will most likely include certain limitations and exceptions

that would strive to balance the competing fundamental public and individual interests

(among others).

Overall, the diversity of ideas outlined above underscores the point that there is no

unified approach to the concept in question. Furthermore, it confirms Bernal‟s observation

that the concept of a right to oblivion “provokes emotional and instinctive reactions, often

very negative, rather than rational and thoughtful responses”20, particularly since the

discussion around the world has only recently taken shape.

3. The right to oblivion in the digital world

Flaherty‟s reference to a right to be forgotten 21 in relation to private data in the digital world

in 1989 is considered one of the first that have been recorded in the academic literature.

See Ausloos J., „The „Right to be Forgotten‟ – Worth Remembering?‟ (2012) Computer Law & Security

Review, 28(2), pp.143–152, 7 and the relevant references provided.

„Data Protection: forget about a “right to forget”‟, Amberhawk, 28.03.2011.

Kierkegaard S., et al., „30 years on – The review of the Council of Europe Data Protection Convention‟

(2011) 108, Computer Law & Security Review 27, pp.223-231, 227.

Bernal P. A., „A Right to Delete?‟, (2011) European Journal of Law and Technology, Vol. 2, Issue 2, p.2.

Flaherty D., Protecting privacy in surveillance societies: The Federal Republic of Germany, Sweden, France

Canada, and the United States (1989) Chapel Hill, NC: The University of North Carolina Press.

However, the first references to what was then called right to be forgotten are made in cases

related to the rights of ex-convicts22, with particular reference to their right to erase their past

convictions under certain circumstances or to prevent the re-publication of details of

unfortunate past events under specific conditions. In this framework, after a certain period of

time, persons who have been sentenced for criminal offences may be granted the right to

prevent third parties from identifying their criminal past, a right which is recognised under

the broader idea of a right to personality in most continental jurisdictions23.

3.1 Definitional and terminological difficulties

It is arguably difficult in principle to argue on a subject matter when the terms surrounding it

have been given a range of different meanings24. However, when this is combined with a

parallel disagreement on the term that should be used, which itself leads inevitably to an

inconsistent use of the available terms in the academic literature, then approaching this

concept becomes a far from an easy task.

Aristotle identified two terminological difficulties that should be solved when an issue

is initially approached. He suggests that is vital to identify first whether the things that

constitute the subject matter of a certain research are “equivocally named” («omonyma»), i.e.

things that have the name only in common, the definition corresponding to the name being

different”25 and secondly, to see whether the things are “univocally named”26 («sinonyma»),

According to other opinion the “right to be forgotten” was born from the concept of “right to forget”,

Vermesa O., Friess P. (Eds.), Internet of Things – Global Technological and Social Trends, (2011) River

Publishers, Denmark, p.78.

Werro F., „The Right to Inform v. the Right to be Forgotten: A transatlantic Clash‟, in Haftungsrecht im

dritten millennium = Liability in the third millennium, (2009) Center for Transnational Legal Studies

Colloquium, Georgetown University, Research Paper No. 2, in Ciacchi A. C., Godt C., Rott P., Smith L. J.

(Eds.), Baden-Baden, F.R.G.: Nomos, pp. 285-300, 285.

Brimsted K., supra note 2 at 6.

Aristotle, Categories, 1a 1-2. The problem of “things equivocally named” («ομωνύμων») and the effects on

the conceptualization of “law” has been systematically explained in Chougias- Palaeologos Al., Philosophy of

Law: 1. Fundamental Problematic (2000), Ant. N. Sakkoulas, pp.34-67.

Aristotle, ibid., 1a 6-8.

meaning, when not only they correspond to the same name but the name itself corresponds to

the same definition, as for example a man and an ox are both called „animals‟.

The concept of the right to oblivion in the digital world first appeared in the form of

the French le droit à l‟oublie. Writers in English have referred to the concept in various

terms: “right to forget”, “right to be forgotten”, “right to forget/be forgotten”, “right to

delete” and “right to oblivion”. As a prima facie observation, some of these terms are

defined differently by different authors, therefore leading to a situation where the same term

is used to define a different thing (“things equivocally named”). On the other hand, many

authors use several of the above mentioned terms interchangeably27, treating them, therefore,

as “things univocally named”. Despite this, all these terms seem to refer to the concept of

forgetfulness or else oblivion, as even the term right to delete which refers restrictively on the

deletion of data, implies that by deleting information, such information is eventually

forgotten. Overall, it is submitted that no attempt has been made, so far, to present a holistic

systematic conceptual approach of the right to oblivion through identifying and solving the

terminological problems mentioned above and defining the substantial conceptual

differences, if there are any, of all the above mentioned terms.

In his attempt to categorise the conceptual differences that reflect the use of two of the

above mentioned terms, Koops suggests that the right to forget seems to be taking the

perspective of the individual/user by referring to the importance for someone not to be

obliged to be confronted with his own past, whether the individual himself has forgotten or is

currently trying to forget it.28 In this context, the protection of this interest might imply the

need to introduce: a) a right that will allow an individual to be able to “control his past” such

as e.g. by deleting certain elements from his past that he wishes not to remember (a positive

See for example O. Vermesa, P. Friess supra note 22.

Koops B.-J., „Forgetting footprints, shunning shadows. A Critical Analysis of the “Right to Be Forgotten” in

Big Data Practice‟, (2011) Scripted, Vol.8, Issue 3, p.231.

right) and b) an obligation to third parties not to use/remind the individual of

facts/information that the individual wishes to forget (a negative right). On the other hand, the

right to be forgotten seems to take the perspective of third parties who are invited to take

measures so as not to be able to remember/refer to certain aspects of an individual‟s past,

which is presented as a negative right or “a duty to abstain from remembering someone‟s

past”29.

Based on the above, forgetfulness seems to have been introduced as an umbrella

concept that could capture the substance of the right to forget/be forgotten.30 However, it is

the author‟s opinion that oblivion is a more suitable term since: a) it represents the historical

origin of the concept in the late 1970s from the French “le droit a l‟oublie”31; b) it covers the

conceptualisations of both the right to forget and be forgotten as described above and c) it

does not, a priori, restrict the definitional scope of the concept, and therefore accommodates

its potential future evolution and the broadening of the scope of the protected values.

In 2009, France launched a “Charter of good Practices on the right to be forgotten on

social networks and search engines”32, which invited the signing parties to adopt measures

that facilitate protection of the personal data of the web users33. Furthermore, based on the

French initiative, there is an ongoing discussion on the potential inclusion of a right to

oblivion (mentioned, however, as a right to be forgotten) in the framework of the Council of

Europe34, while the European Commission (“EC”) has just published a widely debated

proposal on the review of the EU Data Protection legal framework where a separate “right to

Koops B.-J., ibid. at 232.

Koops B.-J., ibid.

In Italian the “dirito a l‟oblio”, see Bernal P. A., supra note 20, p.2 and the relevant references provided. A

possible objection is that „oblivion‟ has particular connotations in English that „oublier‟ doesn‟t have in French

– but that‟s always the case whatever translation is used.

«Charte du droit à l‟oubli dans les sites collaboratifs et les moteurs de recherche».

Kuschewsky M., „The right to be forgotten – the fog finally lifts‟ (2012) Privacy & Data Protection,

Vol.12(3), pp.10-12, 11.

Kierkegaard S., et al., supra note 19 at 225.

be forgotten and to erasure” has been included. Despite this hyperactivity in the legal world,

as a prima facie observation there is still no universal agreement on what a right to oblivion is

and what it aims to protect.

3.2 The inefficiency of the current data protection mechanisms

Given the heated debate on the nature and scope of the right to oblivion, it is hardly

surprising that the ongoing disagreement extends to the question of whether this right already

exists within the current legal framework35.

Focusing on the EU legal framework, Article 16(1) of the Treaty on the Functioning

of the European Union (“TFEU”) provides that “everyone has the right to the protection of

personal data concerning them”. Similarly, Article 8 of the EU Charter of Fundamental

Rights of the European Union36 (“EU Charter”) provides that “everyone has the right to the

protection of personal data concerning him or her” (para. 1) and that “such data must be

processed fairly for specified purposes and on the basis of the consent of the person

concerned or some other legitimate basis laid down by law” while in parallel “everyone has

the right of access to data which has been collected concerning him or her, and the right to

have it rectified” (para.2). It has been argued that a right to oblivion is not part of the

Charter37 or the TFEU, since there is no clear provision that would allow an individual to

have control of his data, such as through a clear right of deletion of data.

Furthermore, as Commissioner Reading argued, the notion of consent, which is one of

the fundamental principles underpinning the EU data protection scheme, does not succeed in

its purpose as it is currently applied38. It is submitted that this as a fundamental reason could

prima facie justify the need to introduce a right to oblivion, taking into account the often

Nys H., „Towards a human right “to be forgotten online”?‟ (2011) European Journal of Health Law, 18(5),

pp.469-475.

Charter of the Fundamental Rights of the European Union, (OJ C 364/1 of 18.12.2000).

Koops B.-J., supra note 28 at 247.

See also Bernal P. A., supra note 20 at 4.

complicated, misleading terms of use of several well-known internet applications. A typical

„one–click‟ expression of consent, within an online environment where the user has no

discretionary power to choose among different options/levels of use of his data, cannot

simply be regarded as sufficient expression of consent, i.e. “a freely given specific and

informed indication”39 of someone‟s wishes. Indeed, despite the fact that “privacy is often

considered to be sufficiently protected by giving the individuals the „power‟ to (dis)agree”,

the notion of consent is a mere “illusion of choice”40 since in reality “privacy policies are

written in vague legalese, [there is a] lack of valid alternatives […] and even a withdrawal of

consent does not (necessarily) allow a person to have his or her data removed

retroactively”41.

Considering the above, it is clear that the current data protection framework is mainly

inspired by what are known as control-based theories, i.e. the idea that a person should have

full control over his personal information. Despite its significance, such an approach is in my

opinion unable to provide effective protection from the threats imposed by modern

technological developments, since as it has been argued, this conceptualisation is vulnerable

to examples of “threatened losses”42, e.g. where there has been no actual misuse of my data,

but for an existing threat or cases “when there is no control over disclosure”43 such as those

in which it seems that an individual has given up all his rights to controlling the use of his

personal data.

Reding V., speech/10/441, Brussels, 16.10.2010.

Ausloos J., supra note 17 at 8 and the references provided.

Ausloos J., ibid. at 6.

Austin L., „Privacy and the Question of Technology‟ (2003) Law and Philosophy, Vol. 22, No.2, pp.119-166,

125.

Austin L., ibid. at 126.

Furthermore, Ausloos44 argues that the current data protection scheme takes a

proprietary approach to privacy protection, which differs from the personal privacy

approach adopted by the “European Convention of Human Rights” (“ECHR”) (discussed

further in section 6.1). This matters, in the author‟s view, since the underlying value of the

right to oblivion should not merely be the protection of proprietary interests in certain data

but a number of interrelated fundamental values (e.g. autonomy, personality and dignity

among others) that are covered by the right to privacy as a multidimensional concept

(discussed in section 6.2).

4. The right to oblivion in the EU: A proposal for a “right to be

forgotten and to erasure”

4.1 Basic remarks

In 2009, the Vice President of the EC, Viviane Reding, announced her intention45 to review

the Data Protection Directive 199546 (“DPD”), a plan which would include a separate “right

to be forgotten”. The Commissioner justified the need for such an initiative by explaining

that “whether you are online or offline, you should get full, easily accessible and easy to

understand information on how your data is processed [and the latter should] not go beyond

what is strictly necessary”47. Furthermore, she argued that “a unified approach at EU level

will make Europe stronger in promoting high data protection standards globally”48.

Ausloos J., supra note 17 at.3.

“European Commission sets out strategy to strengthen EU data protection rules”, IP/10/1462, 04.11.2010.

The 1995 EU Data Protection Directive (95/46/EC) on the protection of individuals with regard to the

processing of personal data and on the free movement of such data (OJ of 23 November 1995 No L.281, p.31)

lays down general principles to harmonise national rules.

Reding V., supra note 39.

European Commission, supra note 45.

On January 25th 2012 a proposal for a new Regulation49 was published which, if it

becomes law (perhaps within the next two years), will replace the current DPD. Since the

proposed Regulation will have a direct effect it is expected to achieve greater harmonisation

of the national legislations of the Member States50 by tackling any existing inconsistencies

related to application of the data protection rules.

The new Regulation introduced in Article 17 a “right to be forgotten and to erasure”.

This provision generated some (predictably) controversial responses. On the one hand,

Rosen, commenting on the new proposal, was of the opinion that the right to be forgotten

“represents the biggest threat to free speech on the Internet in the coming decade”51. On the

other hand, concerns were raised that the way the right to be forgotten had been presented in

the EC‟s proposed Regulation could mislead individuals by falsely raising their expectations

on the actual enforcement of the right and its effectiveness52. Nevertheless, for the first time

we are presented with a solid legislative proposal on a potential right to oblivion, which for

the sake of consistency we will be discussing through the wording of the proposed

Regulation, notwithstanding that the enforcement implications of this right are still

surrounded by heavy fog.

The new proposal is introduced on the assumption that under the current DPD, there

is no absolute right to be forgotten. However, “data subjects do have a right to require

irrelevant, inaccurate or out of date data to be deleted as well as a right to object to the use

of information by others, both subject to certain exceptions”53. Therefore, considering that

European Commission, „Proposal for a Regulation on the protection of individuals with regard to the

processing of personal data and on the free movement of such data (General Data Protection Regulation)‟,

Brussels, 25.1.2012, COM(2012) 11 final.

Graham R., „Prepare for European data protection reform‟ (2011/12) Computers & Law, 22(5), pp.22-23.

Rosen J., „The Right to Be Forgotten‟ (2012), 64 Stanford Law Review Online, pp.88-92, 88.

Kuschewsky M., supra note 33 at 10.

Finlay A., „Right to be forgotten: will a broad new right work?‟ (2011) Data Protection Law & Policy, 8(1),

p. 14-16. See also Article 2(d) of Directive 95/46/EC.

the substance of a right to be forgotten is provided by the current data protection framework54

it is reasonable to ask what is new about this proposed right?55

4.2 The “right to erasure”

Article 17 of the proposed Regulation seems to be providing, in principle, a right to delete

personal data, i.e. “any information related to the data subject”56. More specifically,

according to Article 17(1), individuals (“data subject”) have the right to request from the

“data controller” the erasure of personal data relating to them and the abstention from

further dissemination of such data mainly: a) if the data are no longer necessary in relation to

the purposes for which they were controlled/processed or b) the consent on which the

processing was based has been withdrawn. The fact that search engines would be obliged to

delete data following claims submitted by users has generated fears that this could transform

Google and other application into “censor-in-chiefs”57. As a response to this argument it has

been suggested that “given the quantity of user-generated content, […] the speed at which

information is produced, [the size and] the anonymity of most posters, and the enduring

nature of the violations, the most practical and efficient solution is to appeal to ISPs for help

and intervention”58, a scheme that would potentially solve jurisdictional difficulties as well.

In any case, it is submitted that controllers are already forced to undertake certain aspects of

such a role, including in their duty to delete data in many cases of profound violations of

fundamental rights, e.g. instances of child pornography.

Koops B.-J., supra note 28 at 237.

Ustaran E., „Forget me not‟ (2010) Data protection Law & Policy, 7(12), p.3. For a summary presentation of

the new proposal see Birnhack M., „Reverse Engineering Informational Privacy Law,‟ (February 10, 2012), p.

34-35.

Article 4(2)

Rosen J., supra note 51 at 92.

Cheung A. SY., „Rethinking Public Privacy in the Internet Era: A Study of Virtual Persecution by the Internet

Crowd‟ (2009) Journal of Media Law, Vol.2, pp.191-217, 215.

In addition to the above, the data controller will be obliged to remove the relevant

personal data if the individual exercises the “right to object” to their processing59, including

data processing for marketing purposes60. In answering such an objection, the data controller

would have to “demonstrate compelling legitimate grounds for the processing which

override the interests or fundamental rights and freedoms of the data subject”61 if the process

is deemed necessary under certain conditions.

4.3 Particular limitations and exceptions to the “right to erasure”

The right to erasure is not introduced as an absolute right, as certain exceptions to its

application are provided. More specific, Article 17(3) provides that the retention of the data

might be deemed necessary if the protection of other interests/rights/freedoms prevails such

as the exercise of the right of freedom of expression, the protection of public health and

where “the processing of personal data [is] solely for journalistic purposes of artistic or

literary expression”62. Further limitations are provided by Article 17(4).

Finally, perhaps the most fundamental exception to the application of the proposed

Regulation constitutes the so-called “household exception” according to which the provisions

will not apply to the processing of personal data “by a natural person without any gainful

interest in the course of its own exclusively personal or household activity”63.

4.4 Where is the “right to be forgotten”?

The proposed Regulation does not provide any clear or descriptive definition of what might

constitute the right to be forgotten, and how it potentially differs from the right to erasure,

even though the EC had acknowledged that there were concerns that the right to be forgotten

Article 19.

Article 19(2).

Article 19(1).

Article 80.

Article 2(1)(d).

is not “widely understood”, and that this right “and the existing right to delete one’s own

personal data are similar”64, a fact that should normally have led to “a clear distinction

between the two rights”65 being drawn.

The relevant EC Communication66 refers to the right to be forgotten in the online

environment as “the right [of individuals] to have their data deleted if they withdraw their

consent and if there are no other legitimate grounds for retaining the data”. If this

interpretation is adopted then the right to be forgotten is tautologous with the right to erasure

or, in Aristotle‟s terms, both of them constitute things univocally named (see section 3.1).

In addition, paragraph 54 of the proposed Regulation presents the right to be forgotten

as a mere extension of the right to erasure. In the actual wording: “to strengthen the ‘right to

be forgotten’ in the online environment, the right to erasure should also be extended in such a

way that a controller who has made the personal data public should be obliged to inform

third parties […]”.

Considering this, one possibility would be to interpret the right to be forgotten as a

mere extension to the right to erasure. Under this approach the right to be forgotten would

logically constitute what is left of Article 17 when we exclude the provisions that relate to the

obligation of the data controller to delete personal data following a justified claim by a user.

In that case, the right to be forgotten is summarised in Article 17(2) which provides that, in

case the data controller has made the personal data public, it will be obliged to take all

reasonable steps, including technical measures, to inform third parties which are processing

such data of the erasure request made by the individual, and in case the data has been

published under the authorisation of the data controller the latter would be held responsible.

See also European Digital Rights (EDRi), „Response to EC consultation on the review of the Data Protection

Directive‟, 15.01.2011., p.8.

EC Staff Working Paper, „Impact Assessment Accompanying the proposed Regulation‟, SEC(2012) 72 final.

EC Communication, supra note at 6.

However, if we read the Explanatory Memorandum of the proposed Regulation, the

EC seems to provide that the extension of a right to erasure is only one of the “conditions of

the right to be forgotten” provided in Article 17: “Article 17 [...] provides the conditions of

the right to be forgotten including the obligation of the controller which has made the

personal data public to inform third parties on the data subject’s request to erase any links

to, or copy or replication of that personal data”67. Undoubtedly, if we adopt this view, and

considering that the rest of the provisions refer to the right to erasure, then it is reasonable to

ask: which are these “other conditions” of the right to be forgotten, that are supposed to be

provided by Article 17? Logically, if all the other conditions refer to the right to erasure then

the right to be forgotten would simply constitute a tautology of the right to erasure, with the

exception of the extension of Article 17(2) mentioned above.

Considering the above, could it be true that “the right to be forgotten”, as presented

in the new EU proposed Regulation, does not in fact add much more than a “shiny” title to

Article 17?

4.5 Preliminary conclusions

Firstly, as Koops rightly observed68 in relation to the current DPD, the new proposal focuses

on providing a right to erase data that are no longer necessary, which raises concern for when

and why the right can be invoked since an individual would most likely not be informed

about the existence and the use of the outdated data before the harm has already occurred.

Secondly, all rights provided in the proposed Regulation would not apply in

“household situations” (Article 2(1)(d)) as is the case with the current DPD, which may

Paragraph 3.4.3.3. of the Explanatory Memorandum of the proposed Regulation.

Koops B.-J., supra note 28 at 244.

result in the exclusion from any protection framework of a great number of cases such as

those involving an individual‟s social-networking contributions69.

Finally, the new proposal maintains the current conceptualisation of data protection as

a control-based mechanism which itself implies that the proprietary approach on personal

data prevails, as mentioned above in section 3.2.

5. Conceptualising a human right to oblivion

5.1 Oblivion as a right

A number of attempts have been made to conceptualise the right to oblivion within the

existing legal mechanisms. Firstly, a tort-based approach by analogy to the right to restitution

for harm seems unable to stand as it fails to provide sufficient protection. Indeed, it would be

difficult for an individual to prove the conditions required, as in that case he would need to

know with certainty which other person/company held information and to be able to prove

that from such circumstances he has suffered harm.70

Secondly, a property-based71 mechanism has been presented which argues for an

ownership conceptualisation of this right, i.e. that an individual, as we mentioned above, will

have a kind of control-right of the data, causing an “erga omnes effect”72 even after the

information has left his/her hands. Similarly, the copyright-based approach73 which falls

close to property-based perspective, offers a bundle of rights protection74 regardless of

whether the information has been publicly exposed. As illustrated, the fact that I have

exposed my book to someone does not eliminate the rights I have on the book. since it would

Koops B.-J ibid. at 238.

Conley C., „The Right to Delete‟ (2010) AAAI Spring Symposium Series, North America, p.55.

See for example Schwartz P., „Property, Privacy and Personal Data‟, (2004) Harvard Law Review, Vol. 117,

No.4, pp.2056-2128, 2057 (and the references provided).

Koops B.-J., supra note 28 at 247.

See for example Samuelson P., „Privacy As Intellectual Property‟, (2000) Stanford Law Review, Vol. 52, pp.

1125-1173.

Conley C., supra note 70 71 at 55.

be illegal to photocopy it cover to cover and sell it to third parties75. However, it is suggested

that this conceptualisation cannot apply efficiently in the framework of the right to oblivion

since, as we will argue, the scope of such a right should not be restricted merely to protecting

the data but also to safeguarding the well-being of an individual. In order to succeed this, it

requires the protection of a number of human goods from any potential threats, even in cases

where there has not been any prima facie unlawful interference with a person‟s data in the

traditional approach (e.g. the recent cases in Spain76 where Google has been asked to prevent

users‟ access to sites that contain defamatory content about an individual).

5.2 Oblivion as a human right

Feinberg defined a right as a claim first against specifiable individuals and second with

reference to their action or omission on one‟s behalf.77 Naturally, the question arises: “When

does someone‟s interest become a justified claim upon others?” Tasioulas argues that our

interests ground rights only if they are weighty enough to justify the imposition on others of

duties to respect those interests78. Therefore, the actual difference between a right and mere

interest on which a right might be based is the fact that the content of a right (and particularly

a human right) is also the content of a corresponding duty79.

For the purpose of this article we may endorse the spirit of the broader definition

given by Raz80, that a concept/interest may be regarded as human right: a) if it can be shown

that there is an individual interest which according to certain social conditions should be

Solove D. J., The future of reputation – gossip, rumour, and privacy on the internet (2007), p. 185.

Alonso N., „The right to be forgotten: a look at recent Spanish cases‟ (2011) Data Protection Law & Policy,

8(10), p.4.; also „The “right to be forgotten”: its recent application in Spain‟ (2001) Data Protection Law &

Policy 8(3), pp.10-11.

Feinberg J., Rights, Justice and the Bounds of Liberty (1980) Princeton University Press, chs. 6,9-11.

Tasioulas J., „Human Rights, Universality and the Values of Personhood: Retracing Griffin‟s Steps‟ (2002)

European Journal of Philosophy, 10:1, pp. 79-100, 96.

Tasioulas, „Taking Rights out of Human Rights‟ (2010) Ethics, 120, pp. 647-678; Griffin, On Human Rights

(2008), Oxford University Press, p.97.

Raz J., „Human Rights Without Foundations‟ (2007), Oxford Legal Studies Research Paper No. 14/2007,

p.18.

satisfied (moral right), and b) when the conditions are appropriate to create a duty to

protect/respect/promote the interests of individuals identified in (a)81. Logically, if reaching

the threshold of rights requires the existence of an important interest, then to enter the world

of human rights something more should be required. Griffin rightly suggests that only human

interests of special importance should be ring-fenced with the notion of human rights.82

If we adopt this view then a potential human right to oblivion could only be justified

if its underlying rationale was the protection of such a fundamental value, namely that was so

important to human nature as to impose corresponding duties to others to respect this value.

However, Griffin argues further that to distinguish human rights from other interests, we

should apply the condition of “practicalities”, i.e. that human rights must depend, to some

extent upon their being “an effective, socially manageable, claim on others”83. For him,

“rights bear a close relationship with duties. What is true of duties, meaning that you cannot

ask from someone to do the impossible, is equally true of rights”. If it is impossible for a

thing to be done, it is absurd to claim it as a right84.

Griffin‟s argument simply defends the view that a right should not be introduced if it

is in principle unenforceable. However, this is not necessarily true since if a right is

impractical or unnecessary at time T in society S, should it not be a human right?85 In my

view, the fact that a right, in certain circumstances cannot be adequately fulfilled for all does

not necessarily prevent it being a human right.86 Applying this view in relation to the right to

in this framework we are not concerned with Raz‟s third condition which refers to a state‟s lack of immunity

from interference regarding these matters.

Griffin J., „First Steps in an Account of Human Rights‟, (2001) European Journal of Philosophy, 9:3, pp.306-

327, 314.

Griffin J., „First Steps in an Account of Human Rights‟, ibid. at 315.

Cranston M., „Are There Any Human Rights?‟, (1983) Daedalus, MIT Press, Vol. 112, No. 4, Human Rights,

pp. 1-17,13.

Eddy K., „On Revaluing the Currency of Human Rights‟ (2006) University of Oxford, Department of Politics

and International Relations / Centre for the Study of Social Justice, Working Paper Series SJ003, p.6.

Tasioulas J., „Human Rights, Universality and the Values of Personhood: Retracing Griffin‟s Steps‟, supra

note 78 at 90.

oblivion, I suggest that it should be conceptually approached in the light of the modern social

world and not outside the notion of present human behaviour. The fact that some countries

are not so technologically advanced as to generate the need for a right to oblivion or chose

not to apply it for any other reason, does not require us to exclude such a right from the

concept of human rights in principle or to reject its existence, providing it fulfils Raz‟s above

mentioned conditions.

To conclude, if we want to include the right to oblivion among human rights, the

main question is whether the right to oblivion protects such individual interests/values of

special importance, related to human existence, as to result in the creation of duties to others

to protect it.

6. A systematic attempt to define the scope of a human right to

oblivion

A concept cannot be discussed without first defining its nature and substance. As the right to

oblivion has not yet taken a solid form within the academic debate, it is often discussed as a

right, mere interest, value or a policy aim87. This study argues for a right to oblivion as a

legal right and more particularly a human right. Based on this principle, the logical sequence

would be to ask what the scope of such a right might be.

Despite the broad disagreement on its definition, most authors agree that a right to

oblivion in the digital world aims in principle to grant an individual control not only of data

related to unfortunate past events or the ability to prevent the publication of data in libel

cases, but in fact to all data88 in the digital world (data stored on the Web as well as

organisational databases): i) generated by him (“digital footprints”), or ii) generated by

others but relating to him (“data shadows”), e.g. search questions, purchases etc.

Koops B.-J., supra note 28 at 230; also Leaton Gray J., „A right to be forgotten: the far-ranging implications‟

(2011) Data Protection Law & Policy, 8(5), pp.14-16.

Murata K., Orito Y., supra note 8 at 192.

6.1 The relationship between the right to oblivion and the right to

privacy

A debate related to personal data seems prima facie to be related to the well-established

discussion on people‟s right to a private life. Technology seems to be forcing us to reconsider

and perhaps deepen our understanding of the nature of privacy as a human right as well to

explain “why we are concerned about losses of privacy”89. A number of cases have recently

appeared that seem not to fall within the traditionally perceived domain of privacy as they: a)

involve the collection, use or disclosure of information that does not seem prima facie to be

„sensitive‟ and b) concern circumstances where the information seemed already to have been

in the broad public domain90.

More specific, there is evidence that the UK Courts have recently started to embrace a

more protective approach, beyond the traditional breaches of privacy, which seem to relate to

both the above mentioned situations91. However, despite the „promising‟ decisions in both

Campbell92 and Rowling93 it is perhaps safe to conclude that a UK court might still be

reluctant to accept without any further considerations that “the mere taking of one‟s

photograph in public, the exposure to observation, and the subsequent dissemination of such

information to the wider public”94 constitute a breach of the right to privacy.

On the other hand, the European Court of Human Rights (“ECtHR”) has taken a

different approach by using Article 8(1) of ECHR, i.e. “everyone has the right to respect for

Austin L., supra note 42 at 121.

Austin L., supra note 42 at 120; also Nissenbaum H., „Protecting Privacy in an Information Age: The Problem

of Privacy in Public‟ (1998) Law & Philosophy, Vol. 17, p.559.

Basil Markesinis, Colm O’Cinneide, Jörg Fedtke, Myriam Hunter-Henin, „Concerns and Ideas about the

Developing English Law of Privacy (And How Knowledge of Foreign Law Might Be of Help)‟, (2004) The

American Journal of Comparative Law, Vol. 52, No. 1, pp. 133-208,148-150.

Campbell v MGN Ltd [2004] UKHL 22.

David Murray v Express Newspapers and Big Pictures Ltd [2007] EWHC 1908 (Ch).

Cheung A. SY., supra note 58 at 201.

his private and family life”. More particularly, following Peck v UK95 and Von Hannover v

Germany96, according to the ECtHR, “privacy also concerns individual acts that take place

in public, where the boundary between what is public and what is private becomes

immediately blurred”97, while in parallel, “information at issue does not need to be sensitive,

embarrassing or humiliating in order to qualify for protection”98.

6.2 The right to privacy as a multidimensional concept

We have mentioned in section 3.2 that the current data-protection scheme is based upon the

idea that a person should be able to control the information related to him; in other words that

“knowledge about me is my property”99. Ramsay argues that this constitutes a very narrow

understanding of what privacy is in reality, as there is more to privacy than controlling

information, as for example in cases where a person believes he is spied upon or where media

is focused upon his life100. In such situations he argues that a person does not seek to control

the flow of information but simply to “be let alone”101. In addition, he suggests that

autonomy itself, as the value of being able to develop and retain control over life and choices,

cannot be the sole reason we need privacy as there are cases where we “spy [on] someone to

protect their own autonomy […] or to protect the autonomy of all”102 as well as cases where

for example someone is spied upon but is unaware of this and therefore his control over his

life and choices is not threatened103. At this point we need to note Weber‟s suggestion that the

Peck v United Kingdom, (Case 44647.98) [2003] EMLR 15 (ECtHR).

Von Hannover v Germany, (2005) 40 EHRR 1.

Cheung A. SY., supra note 58 at 194; Markesinis B., O’Cinneide C., Fedtke J., Hunter-Henin M., supra note

91 at 162-163.

Cheung A. SY., supra note 58 at 208.

Ramsay H., „Privacy, Privacies and basic needs‟ (2010) The Heythrop Journal, 51(2), pp.288-297, 288.

100

Ramsay H., ibid. at 289.

101

Warren S., Brandeis L., „The Right to Privacy‟ (1890) Harvard Law Review, Vol. 15, No.5, pp. 193-220.

This view implies that the “right to be let alone” is merely only one aspect of the right to privacy.

102

Ramsay H., supra note 99 at 289.

103

Ramsay H., ibid. at 289-290.

“rightholders‟ autonomy”104 should perhaps be the central idea when discussing potential

threats to privacy rights in the digital world, as well as Bernal‟s105 view that besides the

actual threat to an individual‟s autonomy, a potential direct threat to autonomy106 should

equally be taken into account that could arise from people‟s feelings when under the threat of

surveillance and/or having their personal information potentially misused.

Recently, a number of attempts have been made to explain how privacy should be

approached in the context of ongoing technological evolution. Several authors have argued

that privacy should be understood as a “cluster concept”107, i.e. that we should cluster

together “certain of the conceptions instead of considering only one single conception”108. In

other words, instead of trying to argue whether privacy aims to safeguard values such as

“secrecy”, “control of personal information”, and “personhood” (e.g. individuality,

autonomy, dignity and other factors)109 we should be aiming to claim an

“interrelationship”110 of different values from a “multidimensional approach”111. Hugl112

summarises such an approach attempted by Burgoon et al.113, who defines privacy as “the

ability to control and limit physical, interactional, psychological and informational access to

one‟s group or to the self”. More specifically, in this view: “a) the physical dimension refers

to how physically accessible an individual is to others; b) the psychological dimension looks

104

Weber R.H., „The Right to Be Forgotten: More than a Pandora‟s Box?‟ (2011) JIPITEC, Vol.2, pp. 120-130,

128.

105

Bernal P. A., „A Right to Delete?‟, supra note 20 at 5.

105

Bernal P. A., ibid. at 5.

106

Ausloos J., supra note 17 at 33.

107

Hugl U., „Approaching the value of Privacy: Review of theoretical privacy concepts and aspects or privacy

management‟ (2010), AMCIS 2010 Proceedings, Paper 248, p. 4-5.

108

Hugl U., ibid. at 4.

109

Solove D. J., „Conceptualising privacy‟, (2002) California Law Review, Vol. 90, pp.1087-1156.

110

Hugl U., supra note 107 at 6.

111

Burgoon J. K., Parrot R., LePoire, B. A., Kelley D. L., Walther J. B. and Perry D., „Maintaining and restoring

privacy through communication in different types of relationship‟ (1989) Journal of Social and Personal

Relationships, Vol. 6, pp.131-158.

112

Hugl U., supra note 107 at 4.

113

Burgoon J. K. et al., supra note 111.

to an individual‟s right to decide with whom she or he shares personal information […]; c)

the social dimension means the ability to control social interactions […] and d) the

informational privacy dimension refers to an individual‟s right to reveal personal

information to others”114.

Along the same lines, Solove rightly observes that “not all privacy problems are the

same, and different conceptions of privacy work best in different contexts. Instead of trying to

fit new problems into old conceptions, we should seek to understand the special

circumstances of a particular problem”115. Having identified the relevant circumstances we

can then understand which dimension of privacy this disruption belongs to, which will then

reveal the types of human goods that are threatened.

6.3 The right to privacy as an instrumental good in the light of

Aristotelian philosophy

Having observed that privacy itself does not seem to be aimed by individuals for its own sake

Ramsey suggests that “[p]rivacy may not be one of the most basic of human goods – not one

of the goods which actually constitute our well being; but it is one of the strategically vital,

„second order‟ goods without which our chances of securing well-being are dramatically

reduced”116. His conceptualisation of privacy is based upon Aristotle‟s idea that there are two

kinds of objective human goods. On the one hand, there are “intrinsic goods”117

(«architektonika αgatha») which are sought by people for their own sake and not in order to

achieve/gain something else. On the other hand, there are “instrumental goods”118, i.e. the

ones that we aim to achieve not for their own sake but so as to gain another greater good.

Based on this conceptualisation of human goods, Ramsay rightly argues that privacy would

114

Hugl U., supra note 107 at 4.

115

Solove D. J., „Conceptualising privacy‟, supra note 109 at 1147.

116

Ramsay H., supra note 99 at 293.

117

(«αρχιτεκτονικά αγαθά»); Aristotle, Nicomachean Ethics, Book A, 1094a18-22.

118

Ibid.

never be pursued for its own sake but constitutes rather “one of the pre-conditions that must

be satisfied if persons are to function, and function well, in respect of their most important

capacities”119.

Based on the above, Ramsey seems to be reaching the same conclusion as Tasioulas

(see section 5.2) but from a different path. Ramsay argues that, assuming the idea of objective

human goods is true, then when there is a human need to obtain a value necessary for “our

natural functioning and flourishing”120, in other words a need to obtain an “instrumental

good” which, once achieved, will allow us to acquire a basic (intrinsic) good, such as for

example knowledge, health, friendship etc., then “the rights-claim to what is needed can

accurately be described as a „human right‟”121. It is submitted that this conceptualisation of

privacy based on Aristotle‟s philosophy on human goods seems paradoxically122 to be hidden

within the text of the current EU DPD which provides that “data-processing systems are

designed to serve man; […] respect their fundamental rights and freedoms, notably the right

to privacy, and contribute to […] the well-being of individuals”123.

6.4 The right to oblivion as an instrumental good and a specific

expression of a multidimensional right to privacy

Having described in sections 6.2-6.3 the two main categorical characteristics of privacy, as a

multidimensional concept and as an instrumental good, we now turn to examine the

relationship between the right to oblivion and the right to privacy.

Having considered the broad debate in the literature, a summary of which was

presented in section 2 of this essay, Koops identified three possible conceptualisations of the

right to oblivion: The first is a more widely accepted demand for personal data to be deleted

119

Ramsay H., supra note 99 at 293.

120

Also Finnis J., Natural Law and Natural Rights, 9th ed. (1996) OUP, p.205.

121

Ramsay H., supra note 99 at 294.

122

Oddly enough, as we have shown, the DPD provisions reflect a pure “control–based” perception of privacy.

123

EU Data Protection Directive 1995, s.2.

in due time (the new EU proposal discussed in section 4 is an example of such a perspective).

The second is what he called a “clean slate” perspective, i.e. “that outdated data should not

be used against people”. This approach could allow the right to oblivion to “be translated

into sector-specific and context-specific norms specifying which online information should be

included or excluded in decision making”124 (e.g. employment, public administration etc.).

Finally, he presented an alternative “clean slate” perspective on the right to oblivion which

refers to the need for an individual to feel unrestrained in expressing himself, which itself

would then guarantee his self-development.125 In Koops‟s own words, this third aspect “aims

at preventing people from suffering unduly from information about their past, with

connections to the right to privacy and identity construction”126. He argues that the first two

perspectives could potentially constitute the content of a legal right; however, he considers

that the third one could only have the character of a mere interest or value127.

Koops‟s conceptualisation of the right to oblivion seems satisfactorily to cover the

main broad areas which have been argued to fall under this concept, even though his

definitions seem to partly overlap and therefore should be seen as complementary to each

other. In our view, all three conceptual categories mentioned above can be conceptualised

under a multidimensional right to privacy, and by doing so, all underlying values should be

legally protected.

More specifically, the first approach which summarises the right to delete/erasure, as

discussed in sections 4.2-4.3, mainly refers to the need to restrict informational access of

third parties to certain personal information, which according to Burgoon at all128 constitutes

one of the dimensions of the right to privacy. This conceptualisation seems to reflect the

124

Koops B.-J., supra note 28 at 252.

125

Koops B.-J., ibid. at 254.

126

Koops B.-J., ibid. at 253.

127

Koops B.-J., ibid.

128

Burgoon et al., supra note 111.

traditional understanding of a right to privacy as a control-based mechanism (see section

3.2).

The second perspective seems to refer to an individual‟s need to avoid being

sanctioned, for example in his professional environment, in cases where information has been

obtained about his past that is irrelevant to assessing his present and future potential. This

need falls, prima facie, mostly under the social dimension of privacy, mentioned by Burgoon

et al.129, as it protects an individual‟s freedom to determine his social relationships with third

parties.

Finally, the third perspective, in substance, falls both under the psychological as well

as the social dimensions of privacy, as understood by Burgoon et al.130. By referring to the

need to protect individual self-development and personal identity, this conceptualisation of

the right to oblivion aims to safeguard individual autonomy and dignity in cases where,

despite the absence of any clear-cut unlawful use of personal information, an individual‟s

rights are nevertheless violated (e.g. where a person feels that is under surveillance by a

social network or a search engine which collects data related to his actions, despite these data

not yet having been used). Having described privacy as an instrumental good that aims to

allow individuals to enjoy intrinsic goods, among which we have identified autonomy, and

taking into account that this perspective of the right to oblivion aims to protect this exact

value, i.e. personal autonomy/development, it can reasonably be argued that a claim against a

threat to this value should be regarded as a human right claim.

Consequently, based on the above, it seems that the right to oblivion, at least as

conceptualised in the broadest possible terms (as provided by Koops), could be regarded as

an expression of the multidimensional right to privacy, and therefore a human right. In

129

Burgoon et al., ibid.

130

Burgoon et al., ibid.

addition, the right to oblivion is also an instrumental good, i.e. a mean to achieve a greater

intrinsic good, since in fact all three conceptualisations of the right seem to be aiming to

protect basic human goods that are necessary for human well-being, including autonomy,

dignity and self-development.

7. Addressing the potential threat of human rights inflation

As O‟ Neil explained, “[o]ne of the most effective ways to destroy a concept is through the

process of conceptual inflation: First, expand the ambit of the concept to include

contradictory elements. Then, resolve the contradictions you have created through insistence

that none of the elements must be weighed off against the others. Finally, systematically and

incrementally work to favour the bogus elements of the concept until the original meaning is

totally lost”131.Significant arguments have been presented by Maurice Cranston132 that such a

fate could befall the concept of human rights through what is called human rights inflation.

To approach this concept we need in principle to endorse Griffin‟s view that human

rights are rights not to anything that merely promotes human good or flourishing, but simply

what is needed for human status. They are protections of human life, not of a good or happy

or perfected human life133. Consequently, if people have human rights to everything which

will or may improve the quality of their life, then the concept of human rights would not be

exceptional134 and the language of rights would become redundant135. In other words, if the

concept of human rights is to be useful, we must distinguish it from other desirable social

objectives.136

131

O‟ Neill B., „Inflating Away Our Human Rights‟, December 14 2009.

132

Cranston M., „Are there Any Human Rights?‟, supra note 84.

133

Griffin J., „First Steps in an Account of Human Rights‟, supra note 82 at 312.

134

Raz J., supra note 80 at 7.

135

Griffin J., „First Steps in an Account of Human Rights‟, supra note 82 at 312.

136

Freeman M., Human Rights (2002) Polity, p.6.

If we adopt this view on the nature of human rights, then Maurice Cranston‟s concern

that positing too many rights will lead to rights inflation and to a devaluation of the currency

of rights should be considered with care. According to Cranston, a human right, by

definition, is something that no one, anywhere, may be deprived of without a grave affront to

justice. There are certain actions that are never permissible, certain freedoms that should

never be invaded, certain things that are sacred. If rights of different order are introduced,

everything is immediately slackened: the sharp, clear imperative becomes a vague wish137.

Considering the above, we should ask whether the introduction of a right to oblivion, as

conceptualised so far, could potentially cause further inflation of human rights.

There is a significant concern that human rights inflation trivialises rights, imposes

unreasonable burdens on duty bearers and excessive constraints on freedom, restricts the

scope of democratic politics, limits the role of toleration and pluralism, and undermines

valuable social relations.138 Critics of the right to oblivion have presented a number of

arguments against its status as a human right (see sections 2), including: a) that the nature of

the right as presented would in fact be unenforceable; b) that there seem to be cases where

the free flow of information is beneficial whether to the individual or the society139 (e.g.

public security, health); and c) that introducing this right would significantly restrain the

exercise of other rights and freedoms.

In my opinion, the enforcement argument can potentially be addressed by uniform

legislative initiatives (e.g. at EU level) or by international courts‟ jurisprudence (e.g. ECtHR).

Furthermore, we have previously argued in section 4.2 that a claim against the ISPs may

solve enforcement and jurisdictional challenges, at least with regards to use of online

137

Cranston M., „Are there Any Human Rights?‟, supra note 84 at 12.

138

Freeman M., Human Rights, supra note 136 at 84-85.

139

Hugl U., supra note 107 at 3.

personal data, a mechanism that was also adopted in the new EU proposal140 (see sections

4.2-4.4). The two remaining arguments, have been previously addressed while discussing the

new EU proposal, where it was shown that the potential exercise of a right to oblivion, as is

the case with the right to privacy, is not an unqualified right, but is subject to strict limitations

and exceptions (see section 4.3). Besides, as the Court of Justice of the EU has ruled141, the

right to the protection of personal data is not an absolute right but should be considered in

relation to its function in society, and a balance should be applied with the other fundamental

rights and in line with the principle of proportionality142.

The potential negative effects from adopting a strict approach to the threat of “human

rights inflation” have raised opposite concerns on the danger of conceptualising one static,

traditional list of human rights objects, a view that would ignore the clear fact of social

change in general. Orend observes that our tendency, as we become more advanced, is to

believe more and more that better things are required to ensure minimally decent treatment

for all143. Similarly, as Tasioulas suggests, human rights are those possessed in virtue of

being human and inhabiting a social world that is subject to the conditions of modernity144.

Therefore, human rights should not be conceptualised as a static object but rather as a living

body which evolves through time and depends upon the needs of society.

Considering the above, the right to oblivion does not in our view devalue the notion of

a human right or have any potential to cause further human rights inflation. In fact, the right

to oblivion should not be considered as a new right. Based on the conceptualisation of the

right to oblivion as an expression of the multidimensional right to privacy, it can be argued

140

Article 51(2) of the proposed Regulation.

141

Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert, judgment of 9.11.2010.

142

See EC Communication, „Safeguarding Privacy in a Connected World – European Data Protection

Framework for the 21st Century‟, Brussels 25.1.2012, COM(2012) 9 final, p.9.

143

Orend B., Human Rights-Concept and Context (2002) Broadview Press, p.111.

144

Tasioulas J., „The Moral Reality of Human Rights‟, in T. Pogge (ed.), Freedom from Poverty as a Human

Right: Who Owes What to the Very Poor? (2007) OUP, pp.75-101, 76-77.

that, the right to oblivion is a mere response to the new threats imposed by the evolution of

ICT and aims to secure a fair balance between the need to use ICT in our lives without

jeopardising individuals‟ abilities to enjoy fundamental human goods.

8. Conclusions

I have tried to show that there seems to be no universal agreement, either on the substantial

constituting elements of the right to oblivion in the digital world, or on the term that should

be used to describe it. The disagreement on the conceptualisation of this right is a result of: a)

certain linguistic problems caused by the inconsistent and non-systematic use of fundamental

terms by academic authors; b) the absence of a holistic legislative initiative up to now, with

the exception of the EC‟s controversial recent proposal; and c) the absence of a systematic

attempt to define the scope and rationale of this right.

My view has been that oblivion has proven under certain circumstances to be a

necessity, or in different terms, an instrument, to safeguard human well-being. I have

attempted to show that a right to oblivion confirms the need for a paradigm shift in privacy,

leading to a multidimensional conceptualisation of the right to privacy. This conceptual

perspective does not require amending the ECHR145 in order to enforce an effective right to

oblivion nor does it compel us “to invent a new theory of privacy from the ground up in order

to deal with the threats posed by information technology”146. Therefore, the view that a right

to oblivion “can only be read very indirectly into the right to privacy as formulated in art.

8(1) ECHR”147 is incorrect.

Finally, I concluded that any future legal and political initiatives concerning the right

to oblivion as an expression of the right to privacy should not be dogmatically attached on the

control-based understanding of personal information but rather constitute the outcome of an

145

Koops B.-J., supra note 28 at 247.

146

Austin L., supra note 42 42at 164.

147

Koops B.-J., supra note 28 at 247.

objective philosophical dialectic on the foundations of the nature of the human being well as

the conditions of human flourishing148. The right to oblivion is not a new right, only a

mechanism to address threats from the misuse of fast-growing technological innovations in

the digital world and to safeguard the core human privacy, and therefore it cannot cause by

its nature any potential further inflation of human rights.

* Total amount of words (excluding bibliography): 10952

148

Ramsay H., supra note 99 at 296.

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The Right to Be Forgotten

June 29, 2012 at 4:14 pm | Posted in Concepts, Critical Perspectives, Questions, Thoughts | Comments Off

http://www.stanfordlawreview.org/online/privacy-paradox/right-to-be-forgotten

The Right to Be Forgotten

February 13, 2012 64 Stan. L. Rev. Online 88

by Jeffrey Rosen

Professor of Law, The George Washington University
Legal Affairs Editor, The New Republic

At the end of January, the European Commissioner for Justice, Fundamental Rights, and Citizenship, Viviane Reding, announced the European Commission’s proposal to create a sweeping new privacy right—the “right to be forgotten.” The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation. Although Reding depicted the new right as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.

In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizesle droit à l’oubli—or the “right of oblivion”—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page.[1]

European regulators believe that all citizens face the difficulty of escaping their past now that the Internet records everything and forgets nothing—a difficulty that used to be limited to convicted criminals. When Commissioner Reding announced the new right to be forgotten on January 22, she noted the particular risk to teenagers who might reveal compromising information that they would later come to regret. She then articulated the core provision of the “right to be forgotten”: “If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.”[2]

In endorsing the new right, Reding downplayed its effect on free speech. “It is clear that the right to be forgotten cannot amount to a right of the total erasure of history,” she said.[3] And relying on Reding’s speeches, press accounts of the newly proposed right to be forgotten have been similarly reassuring about its effect on free speech. In a post at the Atlantic.com, Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten,’ John Hendel writes that although the original proposals a year ago “would have potentially given people the ability to cull any digital reference—from the public record, journalism, or social networks—they deemed irrelevant and unflattering,” Reding had proposed a narrower definition of data that people have the right to remove: namely “personal data [people] have given out themselves.”[4] According to Hendel “[t]his provision is key. The overhaul insists that Internet users control the datathey put online, not the references in media or anywhere else.”[5]

But Hendel seems not to have parsed the regulations that were actually proposed three days later on January 25. They are not limited to personal data that people “have given out themselves”; instead, they create a new right to delete personal data, defined broadly as “any information relating to a data subject.”[6] For this reason, they arguably create a legally enforceable right to demand the deletion of any photos or data that I post myself, even after they’ve gone viral, not to mention unflattering photos that include me or information about me that others post, whether or not it is true.

In a widely cited blog post last March, Peter Fleischer, chief privacy counsel of Google, notes that the right to be forgotten, as discussed in Europe, often covers three separate categories, each of which proposes progressively greater threats to free speech.[7] And the right to be forgotten, as proposed at the end of January, arguably applies in all three of Fleischer’s categories.

The first category is the least controversial: “If I post something online, do I have the right to delete it again?” This involves cases where I post a photo on Facebook and later think better of it and want to take it down. Since Facebook and other social networking sites already allow me to do this, creating a legally enforceable right here is mostly symbolic and entirely unobjectionable. As proposed, the European right to be forgotten would also usefully put pressure on Facebook to abide by its own stated privacy policies by allowing users to confirm that photos and other data have been deleted from its archives after they are removed from public display.

But the right to delete data becomes far more controversial when it involves Fleischer’s second category: “If I post something, and someone else copies it and re-posts it on their own site, do I have the right to delete it?” Imagine a teenager regrets posting a picture of herself with a bottle of beer on her own site and after deleting it, later discovers that several of her friends have copied and reposted the picture on their own sites. If she asks them to take down the pictures, and her friends refuse or cannot be found, should Facebook be forced to delete the picture from her friends’ albums without the owners’ consent based solely on the teenager’s objection?

According to the proposed European Right to Forget, the default answer is almost certainly yes. According to the regulation, when someone demands the erasure of personal data, an Internet Service Provider “shall carry out the erasure without delay,” unless the retention of the data is “necessary” for exercising “the right of freedom of expression,” as defined by member states in their local laws.[8] In another section, the regulation creates an exemption from the duty to remove data for “the processing of personal data solely for journalistic purposes, or for the purposes of artistic or literary expression.”[9] Essentially, this puts the burden on Facebook to prove to a European commission authority that my friend’s publication of my embarrassing picture is a legitimate journalistic (or literary or artistic) exercise. If I contact Facebook, where I originally posted the embarrassing picture, it must take “all reasonable steps” on its own to identify any relevant third parties and secure the takedown of the content.[10] At the very least, Facebook will have to engage in the kinds of difficult line-drawing exercises previously performed by courts. And the prospect of ruinous monetary sanctions for any data controller that “does not comply with the right to be forgotten or to erasure”—a fine up to 1,000,000 euros or up to two percent of Facebook’s annual worldwide income[11]—could lead data controllers to opt for deletion in ambiguous cases, producing a serious chilling effect.

For a preview of just how chilling that effect might be, consider the fact that the right to be forgotten can be asserted not only against the publisher of content (such as Facebook or a newspaper) but against search engines like Google and Yahoo that link to the content. The Spanish Data Protection authority, for example, has sued Google to force it to delete links to embarrassing newspaper articles that are legal under Spanish law.[12] And suits against third party intermediaries are also threatening freedom of speech in Argentina, as the case of Virginia Da Cunha shows. The Argentine pop star had posed for racy pictures when she was young, but recently sued Google and Yahoo to take them down, arguing that they violated the Argentine version of the “right to be forgotten.” Google replied that it could not comply technologically with a broad legal injunction demanding the removal of the pictures, and Yahoo said that the only way to comply would be to block all sites referring to Da Cunha for its Yahoo search engines. Nevertheless, an Argentine judge sided with Da Cunha and after fining Google and Yahoo, ordered them to remove all sites containing sexual images that contained her name. The decision was overturned on appeal, on the grounds that Google and Yahoo could only be held liable if they knew content was defamatory and negligently failed to remove it. But there are at least one hundred and thirty similar cases pending in Argentine courts demanding removal of photos and user-generated content, mostly brought by entertainers and models. The plaintiffs include the Sports Illustrated swimsuit model Yesica Toscanini; when a user of Yahoo Argentina plugs her name into the Yahoo search engine, the result is a blank page.[13]

Finally, there is Fleischer’s third category of takedown requests: “If someone else posts something about me, do I have a right to delete it?” This, of course, raises the most serious concerns about free expression. The U.S. Supreme Court has held that states cannot pass laws restricting the media from disseminating truthful but embarrassing information—such as the name of a rape victim—as long as the information was legally acquired.[14]

The proposed European regulation, however, treats takedown requests for truthful information posted by others identically to takedown requests for photos I’ve posted myself that have then been copied by others: both are included in the definition of personal data as “any information relating” to me, regardless of its source.[15] I can demand takedown and the burden, once again, is on the third party to prove that it falls within the exception for journalistic, artistic, or literary exception. This could transform Google, for example, into a censor-in-chief for the European Union, rather than a neutral platform. And because this is a role Google won’t want to play, it may instead produce blank pages whenever a European user types in the name of someone who has objected to a nasty blog post or status update.

It’s possible, of course, that although the European regulation defines the right to be forgotten very broadly, it will be applied more narrowly. Europeans have a long tradition of declaring abstract privacy rights in theory that they fail to enforce in practice. And the regulation may be further refined over the next year or so, as the European Parliament and the Council of Ministers hammer out the details. But in announcing the regulation, Reding said she wanted it to be ambiguous so that it could accommodate new technologies in the future. “This regulation needs to stand for 30 years—it needs to be very clear but imprecise enough that changes in the markets or public opinion can be maneuvered in the regulation,” she declared ominously.[16] Once the regulation is promulgated, moreover, it will instantly become law throughout the European Union, and if the E.U. withdraws from the safe harbor agreement that is currently in place, the European framework could be imposed on U.S. companies doing business in Europe as well.[17] It’s hard to imagine that the Internet that results will be as free and open as it is now.

John Schwartz, Two German Killers Demanding Anonymity Sue Wikipedia’s Parent, N.Y. Times, Nov. 12, 2009, at A13; see also Walter Sedlmayr,Wikipedia (last visited Feb. 6, 2012), http://en.wikipedia.org/wiki/Walter_Sedlmayr.
Viviane Reding, Vice President, Eur. Comm’n, The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern Data Protection Rules in the Digital Age 5 (Jan. 22, 2012), available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/12/26&format=PDF.
Id.
John Hendel, Why Journalists Shouldn’t Fear Europe’s ‘Right to Be Forgotten,’ Atlantic (Jan. 25, 2012),http://www.theatlantic.com/technology/archive/2012/01/why-journalists-shouldnt-fear-europes-right-to-be-forgotten/251955/.
Id.
Commission Proposal for a Regulation of the European Parliament and of the Council, art. 4(2), COM (2012) 11 final (Jan. 25, 2012) [hereinafter Proposed Data Protection Regulation], available at http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf.
Peter Fleischer, Foggy Thinking About the Right to Oblivion, Privacy . . . ? (Mar. 9, 2011), http://peterfleischer.blogspot.com/2011/03/foggy-thinking-about-right-to-oblivion.html.
Proposed Data Protection Regulation, supra note 6, at art. 17(3).
Id. at art. 80.
Id. at art. 17(2).
Id. at art. 79(5)(c), (6)(c).
Peter Fleischer, The Right to Be Forgotten, or How to Edit Your History, Privacy . . . ? (Jan. 29, 2012), http://peterfleischer.blogspot.com/2012/01/right-to-be-forgotten-or-how-to-edit.html.
Vinod Sreeharsha, Google and Yahoo Win Appeal in Argentine Case, N.Y. Times, Aug. 20, 2010, at B4.
Florida Star v. B.J.F., 491 U.S. 524 (1989).
Proposed Data Protection Regulation, supra note 6, at art 4(2).
Matt Warman, EU Fights ‘Fierce Lobbying’ to Devise Data Privacy Law, Telegraph (Feb. 9, 2012), available athttp://www.telegraph.co.uk/technology/internet/9069933/EU-fights-fierce-lobbying-to-devise-data-privacy-law.html.
Private Data, Public Rules, Economist (Jan. 28, 2012), available at http://www.economist.com/node/21543489.

Flawed discourse of Aadhar and privacy

December 7, 2011 at 11:55 am | Posted in Questions, Thoughts | Comments Off

In the last sixty years India has seen many communal riots.

During some riots Sikhs were the target, in others Buddhists, and some riots were planned against Tribal Christians but a lot of riots were directed against the Muslims of India. In all these riots the state could not control the act of rioting for a long time.

Voter lists has emerged as a favorite tool of rioters. A database derived from voter registration exercise is a rich source of spatial and social co-ordinates. This data is essential in orchestrating riots. What is the process of collecting data on voters, according to election commission of India, ‘

The Election Commission prepares the electoral rolls through a process of intensive revision where house-to-house enumeration is done and electors residing in each house are registered by official enumerators who go physically from door-to-door to collect the information about electors. This process is done normally once in five years. Between two Intensive revisions, summary revisions are done every year during a specified period when persons who are left out of the electoral rolls are given an opportunity to register themselves by applying in Form-6.’

In the mainstream media a lot of people are trying to frame the discourse around Aadhar in terms of privacy. I wonder, why do these people not say a word, A WORD, about privacy when riots happen or when media discusses HOW A RIOT HAPPENS

In every riot privacy, of the most vulnerable people of India, is infringed, why not talk about privacy in terms of riots. Why not talk about reforming laws to protect the privacy of voter registration databases and making the divulging of information an offense

Aadhar and pogroms

December 6, 2011 at 11:55 pm | Posted in Questions, Thoughts | Comments Off

Earlier during riots they used to move around with voter lists now with Aadhar databases with Iris scans and fingerprints will they communally scan areas with fingerprint scanners?

Identity and identification

November 22, 2011 at 3:29 pm | Posted in Questions | Comments Off

Why are policy makers and academics not interested in the core issue- what do we mean by the identity of a human being. Can someone map this identity.

What is a possible measure of identity.

How are identity and identification different. How can you make a distinction when you do not know exactly what one entity stands for.

Information system

November 22, 2011 at 3:25 pm | Posted in Questions | Comments Off

If UID is constructed as a information system, the idea is to allow information to flow symmetrically, what are possible information asymmetries of this system.

Can someone map all information asymmetries, name it and plug it.

Top 200 IT cos log $84 bn revenue

August 2, 2011 at 7:48 am | Posted in New Business, Questions, The Market | Comments Off

Fact-

According to an IE report the IT sector in India is booming again.

Question-

How was this possible.

What role did UIDAI play in this upsurge.

Why is the Indian state redistributing money to this failed sector.

Why is the money not invested in other sectors, especially labor intensive sectors that benefits a lot of small enterprises like agriculture or handlooms or iron smithry or brass tool and object making or tannery or semi precious jewels or public health.

Why is the Indian state seems to benefiting few people over others.

Why is Infosys on top now.

Is that just a coincidence or there is a relationship to the fact that Nandan Nilekani its former boss is sitting smugly in Delhi and manning over UIDAI

http://www.indianexpress.com/news/top-200-it-cos-log-84-bn-revenue/826056/0

Top 200 IT cos log $84 bn revenue

AgenciesTags : IT companies revenues, TCS revenue, Infosys revenues, Wipro revenuesPosted: Tue Aug 02 2011, 12:00 hrsBangalore:

The top 200 IT companies in India logged a combined revenue of USD 84 billion.

The top 200 IT companies in India logged a combined revenue of USD 84 billion (Rs 384,250 crore) to achieve an average growth rate of 25 per cent in 2010-11, the highest in the past four years, according to a survey.

The revenues of these companies stood at Rs 307,126 crore in 2009-10 and Rs 289,093 crore in 2008-09.

The combined revenue of the top 20 IT companies was USD 54 billion (Rs 247,808 crore) in 2010-11, also representing a growth of 25 per cent. This is significantly higher than the 8 per cent growth recorded in 2009-10 on the back of revenues of Rs 198,017 crore.

The 2010-11 growth surpasses the 24 per cent growth witnessed in 2007-08, the year before the slowdown, according to the annual research findings on the Indian IT industry by Dataquest, the flagship journal of specialty publishers CyberMedia.

Each of the top 20 IT companies earned over USD 1 billion in 2010-11, together posting revenues of USD 54 billion (Rs 247,808 crore), contributing 64 per cent to the top 200 companies’ revenue.

According to the findings, the top five Indian IT companies in 2010-11 were TCS, Infosys, Wipro, HP and Cognizant, with revenues of Rs 33,112 crore (25 per cent growth over last year), Rs 25,997 crore (22 per cent), Rs 24,899 crore (13 per cent), Rs 23,227 crore (30 per cent) and Rs 21,393 crore (37 per cent), respectively.

Wipro, which recorded the slowest growth in the top five, surrendered the number two slot to Infosys after six years, the findings said.

The number six slot went to the Indian subsidiary of 100-year-old global tech behemoth IBM (revenues Rs 14,132 crore, year-on-year growth of 14 per cent)

The two companies founded by Shiv Nadar — software major HCL Technologies and hardware firm HCL Infosystems – posted revenues of Rs 14,111 crore (28 per cent growth) and Rs 12,137 crore (2 per cent), respectively, to bag the number seven and number eight slots in the list.

Two product distribution companies, Ingram Micro and Redington, with revenues of Rs 9,766 crore (35 per cent) and Rs 9,274 crore (32 per cent), bagged the number 9 and number 10 slots.

The survey notes that significant leadership changes have taken place at the senior levels in nearly one-third of the top 200 IT companies.

“Very rarely has a more fundamental change swept across the Indian IT industry in the past,” Dataquest Editor Shyamanuja Das observed.

As many as seven of the Top 20 companies — TCS, Wipro, Cognizant, HCL Infosystems, Accenture, Microsoft and Oracle — effected changes in their top leadership, while a leadership change at Infosys would come through this month.

While Mahindra Satyam has made a re-entry in the list after two years, it hasn’t changed the ranking of the top 20 companies significantly. However, the revenues of the next 30 companies (ranked 21-50) grew at 29 per cent, faster than the top 20 companies.

Four companies recorded triple-digit growth, while 150 of the 200 companies (129 Indian companies and 71 foreign ones, who are active players in the Indian market) recorded double-digit growth.

In 2009-10, only one company grew at a rate over 100 per cent, while 78 recorded double-digit growth. In general, companies focused on the domestic market have grown faster than those focused on exports. As many as 18 of the 20 fastest growing companies are focused on the India market.

Coincidentally, the top company, TCS, with a revenue of Rs 33,112 crore (minus BPO), was over 200 times the size of the two companies at the 200th rank — Aftek Limited and Datamatics Global Services — which posted revenues of Rs 155 crore each in 2010-11, the survey said.

Company INFO

Why no one is looking at UID from a political point of view?

June 3, 2010 at 12:43 pm | Posted in My Notes, Questions, Thoughts | Comments Off

I was wondering something. I was wondering why haven’t people
started looking at UID from a political point of view.

Privacy argument is well known but given that Aadhaar is run by Brahmins,given that IT industry is hugely represented from people belonging to upper castes, then, can we hazard a guess, that could it be that in establishing UID under planning commission which is a non-statutory body and transferring such a huge amount of money (1.5 Lakh Crores) which will directly benefit the upper castes of India, is the
government of India, subsidizing and further accentuating monopoly of
Brahmins?

I wonder why are schemes of such scale not thought which
will directly benefit the manual scavengers of India? or for that
matter why are schemes of such scale and I mean schemes which will
result in a transfer of 1.5 LAKH CRORE RUPEES, not thought which will
say for instance, benefit the indigenous tribal population of India?

Can we think of UID as some sort a deliberate mischief on behalf of
GOI to aid Brahmins and other upper caste with public money on the
cost of other population clusters?

I don’t know whether I am following the right track, maybe I am completely off the track as I don’t have any data to verify or disprove, it was just a question which came to my mind and I wanted to share it with you all.

On Communal Violence and its proximity to Census

May 27, 2010 at 8:22 am | Posted in Questions, Thoughts | Comments Off

Why is it that in the last twenty years two
of the most violent of communal clashes have erupted just the year
after the census?

I am of course referring to 2002 and 1992.

Inquiries instituted to asses the riots have often accepted the use
of voter lists by the rioters to kill specified persons with precision
and planning. Could it be a reason, why the far right of India are not
opposing the UID? Digital data. Fingerprint recognition. Even Spatial
mapping too, who knows! Is that why people who could use this
technology to murder others want this mapping of identities to happen
at any cost?

Are we going to witness an unprecedented scale of mass murder in India
in years to come?

On a sublime form of propaganda: ‘UIDAI is just the back-end’

May 22, 2010 at 7:59 am | Posted in Questions, Thoughts | Comments Off

Consider this: In a cognitive propaganda model, language is used
extensively to induce what is known as cognitive distortions. Such
distortions are then utilized to justify an action. A good example for
this would be: The underprivileged of India are ‘suffering’ we give
them a number and everything would be alright after wards etc.

The sublime technique of filtering is part of Cognitive Propaganda.
Now as we all know, ‘filtering’ is over-focusing on one aspect of
something to the exclusion of everything else.

Now consider this:

After attending a cabinet committee meeting on UIDAI alias Aadhar
alias MNIC, Mr. Nilekani spoke to the press. In this respect, I wish
to
draw your attention to the following statement given by Mr. Nilekani
about UIDAI.

“We are just a number issuing and data collecting authority…UIDAI is
just the back-end,” said Mr. Nilekani.

http://beta.thehindu.com/news/national/article433961.ece

I find the portrayal of UID by its boss Mr. Nilekani, as a ‘number
issuing authority’ very very interesting. My interest was drawn to a
particular word -JUST-

Remember 1,50,000 Crores are riding behind this word very innocuous
word  -just-. 1,50,000 crores of public money which is going to be
transferred in the name of creating an archive of hearsays’.

My respect for Mr. Nilekani has grown manifold, because he seems to be
using a very sophisticated cognitive propaganda model to complete his
brief i.e. to transfer 1,50,000 crores of public money, in the name of
a  necessary exercise, to a particular industry, in the name of a
technological ideal.

Every time Mr. Nilekani comes to face the news camera or talks to
press reporters. These days he does it every day. He will
focus on ‘number issuing authority’ aspect of UID in a very carefully
crafted manner.

What about Natgrid Sir?

What about total costs of the project, SIr?

He will not answer any question related to the total cost of project.
I mean. Man! does he wants us to believe that this is how he has run
his business all these years, without having an idea of the cost of
investment, or returns on investment or without having an idea of how
he will be spending in the course of say next five years?

Why does anyone not talk about this loot of public money in the name
of underprivileged of India?

Reminds me of a conversation I have had with a friend once. He was
telling me about the atom bomb. When atom bomb was made, US gov, hired
some linguists and propagandists i.e. communication experts to sell
the idea of bomb to the US public. They had to sell to the general
public, that it is morally okay for US army to slaughter a huge number
of innocent people who had nothing to do with the war.

Linguists zeroed in on one word. -ONLY- . The propaganda machine
worked like mad to sell this idea. Only a couple of thousands will be
affected. Only few hundred thousands will have to pay the immediate
price and so on to create an impression that ‘only’ a ‘few’ people
will be affected.

ONLY is a deeply ambiguous word which means a variety of things but
while used an adjective it means, being the single one or the
relatively few of the kind.

ONLY shares a close association with JUST which is also a deeply
ambiguous word and when used as an adverb means, only or merely.

I wonder if, Mr. Nilekani is deliberately resorting to the use of
these words to create some sort  carefully calibrated cognitive
dissonance? A type of dissonance which first justifies the use of UID
as an aid to the underprivileged while distorting UID’s potential as
an agency which could deeply harm the privacy of individuals. At the
same time, I wonder whether, cognitive dissonance is used deliberately
to take attention off from an open loot of the public money, this
naked subsidizing to revive a middle class sector, to revive a myth of
India as IT Superpower?

Are we the people of India, a property of its government?

May 14, 2010 at 3:55 pm | Posted in My Notes, Questions, Thoughts | Comments Off

Every condom pack has a barcode. That barcode uniquely identifies that condom pack as that condom pack. Similarly bar codes are used for toothbrushes, fridges and almost every imaginable commodity available. These bar codes serve a utilitarian purpose.

Any person who owns a means of production to manufacture a commodity is given the right to tag that commodity, by law so as to ascertain an exact amount of money that he could receive from the sale of such a commodity.

Mr.Nilekani and his team wants to give all Indians a UID number. The GOI wants to tag us. Does the GOI consider all Indians as its property? Should we now start to consider ourselves as a property of Government of India? Is it not that WE THE PEOPLE of INDIA collectively own the Government and the land and all the resources and every thing which is there in this country?

By collecting the identities of the people of India, is not the Government trying very hard to fundamentally change the primary relationship between a collective of Citizens and a machinery of the State which is run by ITS elected representatives? Who do you think you will belong to after Mr.Nilekani has done his job?

India or Government of India?

A note on imagining the current NID program as a form of ‘Slave Trade’

May 9, 2010 at 7:12 am | Posted in Concepts, My Notes, Questions, Thoughts | Comments Off

The argument that UID is good because it will create jobs is doing rounds. This argument is directed at middle class audiences. I think in a country where there is a paucity of jobs, an initiative which promises jobs must be given due consideration. The intent behind it-is nice. We need jobs. However I wonder whether should we allow our money to be used for any initiative which promises to create jobs?

Should we not look at UID from a broad level and try to find whether the existence of such an institution is morally just and good?

I understand that if we were to scrap UID ( given the problems it is facing it might be sooner than we think ) then it will cause a lot of distress, emotional duress and strain to middle class people just like the hundreds of thousands of middle class people who were working for various corporations in England had to undergo a lot of distress, duress and emotional upheaval when the slave trade was abolished.

This is of course not to suggest that UID is like slave trade, that would be ridiculous, but could we not think that, just like slave traders used to forcefully capture Human beings and turn them into commodities to be bought and to be sold and to be enslaved and to be shipped and to be restricted in their movement, so too, in its ‘modern’ Avataar, is there not something deeply sinister about the role which UID is playing?

Is it not that UID is engaging in an act of capturing not Human beings but an aspect of Human beings, i.e. their personal identities, either by diktat (you will have to register) or by economic seduction (you will get an ‘incentive’ of 100 rupees) or by threat to use force ( if you do not register, then you may have to undergo difficulties).

Will UID not shackle our identities and put it behind digital cages? Just like slaves used to be tossed around the world without their
consent will the people behind UID not ship our personal identities across networks in India and possibly abroad and toss it here and there without our consent? Just like a slave ship had an economic value so too, will this digital ship of identities not have an economic value? Just like a slave was the property of a slave owner so too, will not our individual identities become a property of UID? Just like slave ships were subject to attacks by pirates so too, will not these digital ships carrying our identities be subject to constant
attacks by digital pirates like hackers? Just like slaves could be bought and sold so too will not our personal identities be bought and sold? Just like slavery snatched the dignity of human beings so too will not this enslavement of personal identities not snatch away the dignity of who we are? Just like slaves were used as lab rats for all sorts of psedu-scientific experiments like Phrenology and Intelligence Quotient to produce a mis-measure of man will not the data gathered from harvesting our individual identities not used for policy experiments to produce a mis-measure of our identities?

In the course of some other research work which I am pursuing for sometime, I came across a petition filed by the manufacturers belonging to the City of Birmingham arguing against the abolition of
slave trade. This petition was filed in 1789.

Please have a look at the language deployed to formulate the argument,
please look very carefully at the manner in which this appeal is
calibrated and then please reflect about the nature of UID and the
role it is playing.

I may be completely wrong in questioning UID in this manner and therefore I would welcome any comment to set me on the right track.

Image source:

Petition:

Branding:

Slave ship:

Slave auction:

National ID Card- View from England

May 3, 2010 at 7:23 pm | Posted in Arguments Against, Int'l NID Card, Process, Public Documents, Questions | Comments Off

Conservative Party’s view on the notion of a National ID card.

The role of an opposition party is to position itself against the party in power and offer critical viewpoints especially on those issues which require redistribution of a tax payer’s money in the name of public good.

By arguing to do away with the proposal to introduce national identity cards in the UK because of huge costs, the center right conservative party seems to be playing the role of a ‘good’ opposition party.

Why is it then, that the nincompoops managing the BJP, the combined Left and others sitting in opposition do not seem care at all at initiating a critical debate on the fuzzy logic of national identity in India?

(Photographs of an election hoarding sponsored by the Conservative Party. Location: Streatham High Street, London Borough of Lambeth. Date: 3rd of May just three days before the UK general election of 2010. Pictures by: Taha Mehmood )

8. Is UIDAI fair and just?

April 11, 2010 at 1:37 pm | Posted in Questions | Comments Off

If we age with every passing moment. If we are constantly in a state of flux all through our lives.

Then how come a bundle of information related to patterns of our iris and fingerprints and ten other arbitrary, random incidents, like the date of our birth or our name be used to fix who we are?

Is not identity a more complex phenomena?

7. Why invest money on UID?

April 8, 2010 at 10:06 am | Posted in Questions | Comments Off

Nandan Nilekani says UID number will help the poorest of poor, aka underprivileged in politically correct language.

Arundhati Roy says the poorest of the poor, aka underprivileged in politically correct language, are naxal tribals.

She also says that they usually have many names and many identities and the underprivileged are constantly on the move.

Right now the State of India is in a state of war with Naxals.

How then will UID number help the poor if they have many names and government of India is killing poorest of the poor?

If UID cannot help the poorest of the poor what’s the need for it?
It doesn’t make sense, why would. Govt. of India, allot 1900 crore rupees to help poorest of the poor and then send an army to kill them.

6. On Census-

April 7, 2010 at 7:50 am | Posted in Questions | Comments Off

Would the information gathered by these hundreds of thousands of enumerators be absolutely correct?

Given since last year hundreds of millions of Indians must have left their home to work in other cities, for instance how would thousands Bihari laborers scattered in various parts of Delhi, Haryana, Punjab, Jammu and elsewhere, be documented?

What would happen to the enumeration of hundreds of millions who are commuting to places other than their home town on the day of enumeration?

5. On census

April 5, 2010 at 10:49 am | Posted in Questions | Comments Off

Why don’t we have any public data on-

1. The number of policies which are formulated by extensively using Census data?

2. The number of policies which resulted in a just redistribution of public good?

If, of the total number of policies they aren’t many which were not able to create a systematic guideline which could result in a just redistribution public good, then could we not think of using other strategies for effecting change?

4. On Census

April 3, 2010 at 9:33 am | Posted in Questions | Comments Off

Question-

Do Indians in general trust a person representing the Govt. of India as one of their own? If not then how do we know that all enumerators going in all areas of the country will be trusted? Why should we assume that the information collected by them would be genuine?

Assumption-

Given a prevalence of a general perception that a member of government is often corrupt, often exploitative and is often not seen as someone who is duty bound and desirous of our love and respect.

3. On census

April 3, 2010 at 7:13 am | Posted in Nandan Nilekani, Process, Questions | Comments Off

Question-

Nilikani claims numbers will be doled out by 2011-

Should we take all that Nilekani’s is projecting abut UIDAI as truth claims?

Given that India is an overwhelming under-documented nation, people do not have a robust tradition of keeping records, remembering birth dates and so on.