Kenya: Enforce Right to Be Forgotten

The right to be forgotten -- which Thomas Cooley calls the right to be left alone -- enables an individual to have their personal data erased from the internet if its retention affects their privacy, data protection and other rights.

Of late, many Kenyans have been subjected to trolling on social media after damaging images or videos were posted after relationships went sour. The information is available on search engines whenever their names are searched. Due to ignorance, many have not sought legal redress to salvage their name.

Search engines control and process data; hence, the right to data protection becomes useless when one cannot take action if they no longer consent to it.

Human beings can forget past indiscretions and faults of our own and those of others but that is increasingly eroded by modern technology.

This stems from the right to privacy. Besides a law and legal guidelines for the processing of personal data, the right to privacy is also recognised in the Constitution. Article 31 gives the right not to have information relating to one's family affairs unnecessarily required or revealed and the privacy of their communication infringed. One can decide that information on search engines concerning them is private and shouldn't be accessed, hence be delisted.

Precedent set

A precedent was set in the European Union case of Google Spain v Costeja.

The Data Protection Act 2019 borrows heavily from the EU's GDPR, which has gained traction as the global benchmark for data protection policies. The Act does not use the term the right to be forgotten but, rather, the right to erasure.

A data subject in Kenya can request the data controller to erase or destroy without undue delay personal data that the former is no longer authorised to retain.

However, the right to be forgotten is not absolute; it has to be weighed against the public's right to information. There is, however, still a chance to improve the law to define its scope and circumstances.

Mr Atamba is a law student at Moi University.

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