Written by- Havish Dhanwantri, studying B.Com.L.L.B at University Institute of Legal Studies, Panjab University, Chandigarh
Abstract
What are the legal implications related to digital personal data? What are the possible reasons that the recently evolved Right to be forgotten is evoked by an individual? How are Artificial Intelligence Technologies impacting Privacy Laws and the fundamental Right to Privacy? Does the Right to Privacy stand at odds with the Right to Freedom of speech and expression? This article will focus on trying to answer these questions. While focusing on these questions, the article aims to provide answers to questions regarding the intersectionality of the law and the technological world without diverging from the topic at hand. The readers can benefit from the topic by gaining a new perspective on the subject at hand while engaging in an informative reading experience.
Introduction
As the world at large moves towards a more automated lifestyle and the involvement of technological services in the personal lives of people increases exponentially, the potential of user privacy being compromised, also increases significantly. The individual using technological devices and services, from the social media accounts on their phone, to digital watches, all of these devices and services, generate data that is also called as Digital footprint. This digital footprint can be tracked and used for various purposes but it is currently mainly used by large corporations and media companies, to track the internet activity of users and place targeted advertisements in order to maximize growth potential of businesses. This tracking is done through multiple means and their combined effect produces a unique and curated experience for the user. The obvious advantages of such a system like individual oriented content, driving user growth, tailored customer experiences that produce the highest possible satisfaction to the customers are very beneficial to businesses, as they can now advertise directly aiming at the relevant customer. This has increased the growth prospects of companies dealing in people-oriented products on the internet significantly as better user experience is directly linked to increased economic growth in the long-run. While the benefits of this are very attractive in the economic sense, the rights of individuals are getting heavily affected by these developments. These systems are not just being used for their intended purpose, but also user profiling which puts the privacy of the user at risk and infringes on their liberty to select the amount of data that is available to an organization for the stated purposes. In this article, the aim is to address how the Right to be forgotten grants the user the power to control this infringement of their privacy and how artificial intelligence is impacting the subject and the arguments surrounding the issue at hand.
Digital Personal data and the Right to be forgotten
As mentioned in the introductory part of the article that any user of technological devices and services, generates digital footprint and user profiling is done on the basis of that. Now this digital footprint isn’t anything else but the digital personal data of the individual. For any data to qualify as digital personal data, it should be a piece of information that is identifiable with the individual concerned. These identifiers can be many such as, the personal details of the individual, their gender identity or sexual orientation, religious beliefs, and political affiliations and so on. These identifiers constitute an individual’s private identity and they may not be comfortable with disclosure of such details to anyone, but from the economic perspective these identifiers can expand the prospects of advertisement and product placement significantly, thus creating a contest between individual perspective and economic perspective regarding privacy. To regulate the use of digital personal data, various jurisdictions have come up with legislations such as the European Union’s GDPR (General Data Protection Regulation) and the newly developed Digital Personal Data Protection Act in India. Due to the evolution of privacy rights in the democratic societies of the world, a new right, evolved from the right to privacy called the Right to be forgotten has come into existence. This right advocates for the freedom of an individual to regulate the correction, deletion and use of their digital personal data rather than giving the companies, dealing in data, the right to regulate any data related to the user. It is a surprise that the advancement of such a right took so long, considering the fact that individual privacy and freedom to regulate ones choices is such an integral part of democratic societies. The opposition to the acceptance of such a right comes mainly from the economic perspective as stated previously. The world is increasingly moving towards a more capitalized economic approach and the rights of the individual are in contrast to the rules and regulations being formulated to give the corporates more control. Amidst these clashing perspectives, individual privacy becomes even more important when viewed from a collective angle as it not only keeps the individuals at the centre but also gives due consideration to economic approaches. The rights of a person to control their digital personal data become inevitable when we consider the broader implications of the alienation of such a right, as it would mean violating the fundamental rights related to privacy, liberty and even expression.
The role of consent in decoding privacy rights and the Right to be forgotten
To further the topic, we need to understand the role, consent plays in determining the rights an individual enjoys, particularly the right to privacy as it would form the central basis of the person’s private life and personal space. In a comprehensive manner, we can say that, the range of consent determines the amount of privacy an individual enjoys, meaning that every individual should have the right to determine what information about them is made publicly available and what is not. This directly ties in with the Right to be forgotten, as it also contains within itself the right to removal of information about the concerned individual from public platforms, provided that the information is harmful to the mental, physical, social or spiritual wellbeing of a person, considering that such information is no longer relevant but paints a negative picture in the view of others who may happen to come across such information. For e.g. a person being rejected from job interviews because of a past information about them being involved in a physical fight that resulted in a case in which they were acquitted, so here the acquittal proves them to be innocent but the information about the case paints their picture as an angry individual likely to get involved in fights. Here the person should have the right to get the information removed from all the platforms they see fit. The right to be forgotten facilitates consent, as it allows the individual to have better control over certain matters of their life. The facilitation of increased amount of consensual choices for an individual is not only in accordance with legal advancements, but is also beneficial in shifting the focus from an economic to an individualistic perspective as discussed previously in the article. Moreover this also provides an impetus to legislative acumen on the subject as well, by making it more accessible to frame laws with due consideration to user freedom. Here it would be appropriate to mention the inclusion of consent requirements in major data protection legislations like the GDPR (General Data Protection Regulation), CCPA (California Consumer Privacy Act) and the recently passed DPDPA (Digital Personal Data Protection Act), which provides further proof of the intention of democratic governments to strengthen privacy rights, giving a push to wider acceptance of rights like the right to be forgotten.
Involvement of Corporations and Artificial Intelligence
Regarding data privacy in particular and privacy rights in general, the issue that has now been prevalent for some time is the involvement of corporations and their use of sophisticated artificial intelligence mechanisms for user profiling and compromising user privacy significantly. Social media companies are at the forefront of these issues as they employ the use of technologies to target the relevant customer base. Moreover the risk of user data being leaked and exposed to non-legal factors is also rampant, considering the involvement of third party actors for the storing and processing of the digital personal data of the consumers. If this was not enough then to make things worse, the tech companies dealing in large amounts of data employ Artificial Intelligence to profile users and for various other activities, such as tracking user activity, targeted advertising and automated decision making. The various ways through which Artificial Intelligence is impacting privacy laws are-
- User Data Collection and Profiling- The advanced data collection capabilities of AI are required for its smooth functioning and are also used to collect and profile user data in copious amounts. This puts the privacy of the user at risk, as sensitive information about the person, such as their sexual orientation can be made available to others without the users consent. This constitutes a direct violation of the user’s right to privacy.
- Data Surveillance- AI systems can be used to track user activity online and offline (such as their whereabouts) through the same data collection capabilities that are used to profile user data. This extensive collection of personal data can be misused in multiple ways and could even endanger the safety of the individual.
- Extending discrimination and political biases- With much of the world online and hooked to their phones, artificial intelligence technologies can be used to create information bubbles which promote similar information, thoughts and ideas that align with the political beliefs of a person and extend the discriminatory attitude towards other beliefs without facilitating an understanding of both perspectives. This can also be used to shape and influence political affiliations.
- Lack of transparency- AI systems operate in a way that is not accessible to the user and collect data through organized algorithms and systems. The unavailability of options to the user for controlling their digital personal data creates a huge gap between user privacy and transparency regarding their data. In an ideal scenario the gap between privacy and transparency should be minimal as transparency is one of the most essential components for privacy rights.
Amidst these issues, the right to be forgotten is a breath of fresh air as it allows the individual to handle any matters that can affect their reputation, societal status and most importantly their fundamental rights. To better balance privacy rights with AI capabilities, both the government and the private sector need to cooperate and facilitate better understanding regarding Artificial Intelligence and how it will be regulated while balancing the interest of private individuals as well.
The right to privacy and freedom of speech and expression- a comparison
The right to privacy and the right to freedom of speech and expression are both fundamental rights but they differ in their scope and how they are dealt with. The difference in their scope and subject matter may occasionally lead the two rights into conflict. The right to privacy has at its centre, as discussed previously the individual and the facilitation of their choices in the private space. On the other hand, the Right to freedom of speech and expression covers both areas of individual freedom as well as collective freedom such as the people’s right to know. These distinct features of both the rights can lead to some instances of competing interests. Both of these rights are of vital importance in their own regard and regulate different areas of a citizen’s life. The right to privacy of celebrities, politicians and famous personalities may be limited or compromised when compared to private individuals as the nature of their work involves significantly more public exposure, unlike private individuals. It can further be argued that the privacy rights of these personalities may be violated with increased media scrutiny, often overstepping into their personal lives.
Similarly, public spirited individuals and famous personalities also face greater censorship to their freedom of speech and expression as their statements have a wider impact as compared to private individuals. This point explains how both the rights can be at odds and face similar issues as well. Moving on, the freedom of speech and expression can also interfere with the right to privacy when the right to know gets involved. The media facilitates this right and operates on the premise of this right being the basis on which they work and this can lead them to overstep boundaries and invade the private space of individuals. This is another area where the two rights can collide. Although there are various other ways that they can be discordant these are the most obvious.
Aligning Interests
To smoothen the path for alignment of interests of not just corporations and the use of AI but also to align competing fundamental rights, the fine line between the individualistic and economic (or even collective) perspectives should be drawn and dealt with accordingly. The central issue any legal questions regarding the competing interests involving the Right to Privacy and The Right to be forgotten will have to face is the balancing of interests of the individual as well as the collective. Legislative action in this regard might be helpful but the ultimate deciding factor in such matters will be how the rights are balanced and interpreted.
FAQs
1. What is the Right to be forgotten?
The Right to be forgotten allows individuals to request the removal or de-indexing of their personal information from search engines and online databases when it is no longer relevant or necessary. It is rooted in data protection laws such as the EU’s General Data Protection Regulation (GDPR) and has evolved from the right to privacy.
2. How do AI technologies impact the Right to be forgotten?
The use of Artificial Intelligence can complicate the issues related to user privacy and privacy laws, especially the right to be forgotten, due to the large data collection and user profiling capabilities of AI.
3. How do privacy laws affect the development and deployment of AI technologies?
Privacy laws require that AI systems adhere to principles such as data minimization, purpose limitation, and transparency. Developers must ensure that AI technologies are designed to protect personal data, avoid excessive data collection, and provide clear explanations of how data is used. Compliance with laws like GDPR, CCPA and DPDPA is becoming more stringent these days.
4. How can organizations balance AI innovation with privacy concerns?
Organizations can balance AI innovation with privacy by integrating privacy-by-design principles, staying informed about legal requirements, and engaging in open dialogue with stakeholders. Ensuring robust data protection measures and transparent practices helps build trust and aligns with legal obligations.
5. What are the economic and individualistic approaches to privacy laws and freedom of speech and expression?
The economic approach aims to maximize growth by limiting private rights in order for the corporations to extract the most out of their customers while the individualistic approach puts the individual at the centre and advocates for greater individual choice.
