The Jurisprudential bedrock of right to be forgotten
The right to be forgotten is situated at the intersection of privacy, dignity, and the autonomy of personal identity. It challenges the enduring memory of the digital age, which often restricts an individual’s ability to move beyond their past. This concept is grounded in the belief that human personality is a protected interest. When past information remains permanently accessible, it can lock individuals into outdated perceptions, preventing them from evolving beyond earlier versions of themselves.
According to Immanuel Kant, defining a person solely based on their past actions undermines the autonomy of human identity and the capacity to grow and adapt over time. Thus, the right to be forgotten becomes essential for the comprehensive development of an individual’s identity.
According to Warren and Brandeis, the right to privacy is recognized as an integral component of the right to life, the right to be forgotten can be viewed as an implied extension of this principle. In contemporary society, privacy is no longer limited to protection against physical intrusion but has expanded to include informational self-determination. This idea is especially significant in the digital era, where vast amounts of personal data are constantly accessible.
In modern times, true liberty involves not only freedom of action but also freedom from the psychological burden of continuous public scrutiny. The persistent resurfacing of past information through algorithms can lead to a form of “social death,” affecting an individual’s dignity and sense of self. Therefore, safeguarding the autonomy of identity is essential to uphold human dignity, which is a core aspect of the right to life. From a positivist perspective, society benefits when individuals are allowed to reform and rebuild themselves.
If an individual’s past such as a conviction or youthful indiscretion continues to follow them indefinitely in the digital sphere, it can severely limit their opportunities for employment and meaningful social participation.
The concept of Le Droit à l’oubli (the right to be forgotten) in French law reflects the idea that forgetting is a natural and necessary part of human existence. Similarly, the Natural Law School argues that since humans are constantly evolving, the law must acknowledge the right to oblivion, allowing individuals to grow while past memories gradually fade. Consequently, the state should recognize the right to be forgotten as an essential aspect of the right to privacy within the broader framework of the right to life.
However, this right is not absolute. It should not be misapplied in cases involving ongoing judicial proceedings or habitual offenders, where public interest may outweigh the individual’s claim to be forgotten.
Footnote
1. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).