Problems in implementing the ‘right to be forgotten’

by: Panji Prasetyo.

Freedom of expression and the right to privacy are two fundamental human rights that will always be in conflict. In maintaining the balance between these rights, the principle of the right to be forgotten (RTBF) was introduced by the European Court of Justice (ECJ) in its decision on the case of Costeja v. Google in 2014.

The case involved a Spanish businessman, Costeja, who had his bankruptcy status legally removed in 2008. However, his status was not updated online and he was still deemed bankrupt.

He subsequently filed a claim against the search engine company Google, demanding removal of his bankruptcy status. In 2014, the ECJ accepted Costeja’s claim and ordered Google to remove the information.

The court based its decision on European Union Directive 95. The directive protects the utilization and processing of personal data. It regulates the movement of personal data and requires search engines to repeal links that provide either inadequate, irrelevant or excessive personal data.

However, the court did not order the removal of the source of information. This position taken by the court could be presumed to be preserving the right to freedom of expression.

The RTBF principle exists in Indonesia but its approach and application is different from that in continental Europe. RTBF here was introduced under Law No. 19/2016 through the amendment of Law No. 11/2008 (the ITE Law), which was promulgated at the end of 2016.

Article 26 (3) of the ITE Law reads: “Every electronic system operator shall expunge irrelevant electronic in formation and/or documents under its control upon the request of the respective person based on a court order.”

RTBF in the European Union specifically regulates data distribution. It ensures the integrity and quality of data by requiring search engines to provide only personal information that is adequate, relevant and fair.

Meanwhile, Indonesia’s ITE Law has a wider scope. It imposes the onus on every person, state operator, business entity and society providing, managing and operating electronic systems, collectively referred to in the law as electronic system operators (ESO), to expunge or remove any irrelevant information from their systems.

Unlike European Directive 95 and as articulated in Costeja’s case, which only allows human beings to apply for the removal of information, Indonesia’s ITE Law has a broader definition. The word person and the phrase “every system operator shall expunge” could potentially raise a number of issues.

The ITE Law, besides defining a person as an individual either Indonesian or foreign, also includes legal entities. This could create conflict between the need to maintain the right to privacy and up holding freedom of expression. The right to privacy aims to protect people from the abusive power of states and corporations.

While the RTBF principle to protect the right to privacy has been confirmed by the elucidation of article 26 of the ITE Law, the inclusion of legal entities could pose a significant question as to whether its application is only limited to human beings or if a legal entity enjoys the same rights.

If legal entities are entitled, this would contradict the philosophy of RTBF, which is to protect people’s privacy.

Under the Indonesian RTBF, the definition of ESO is very broad. It is possible, due to this broad definition, that in addition to search engines and distributors of electronic in formation, online media (press) could also be included.

There is legitimate concern that RTBF could be used as a tool of censorship by the state to suppress freedom of the press. This concern is further compounded as the word expunge could be applied liberally, resulting in orders for information deletion even from the main source.

The word expunge, if implemented arbitrarily, could adversely affect freedom of expression and right to information.

At the moment there is an existing law, Law No. 40/1999, to manage press postings that are irrelevant and excessive. This law controls press compliance with the journalistic code of ethics.

As an emerging economy, it is important for Indonesian citizens to have access to information to drive economic progress.

Therefore, in creating a reasonable balance between the right to privacy and freedom of expression, the approach taken by the ECJ in Costeja v Google to implement RTBF should be emulated and implemented in Indonesia.

While it is commendable that the government has incorporated RTBF into its laws, its application must be judicious. It is a twoedged sword and, with the right approach and clear direction, it could bring positive results.

Article 26 of the ITE Law re quires a government regulation to detail the implementation of the RTBF principle. This gives the government a great opportunity to provide a clear outline, address concerns and overcome any uncertainties.

Underpinning this is the need for the government to uphold the maxim of lex superiori derogat legi inferiori, which articulates the need that the lower provision not contradict the higher provision.

The Jakarta Post • 11 Mar 2017 • Panji Prasetyo The writer is a senior partner of Panji Prasetyo & Partners Law Offices. The views expressed are his own.