Africa in the digital age: a case for the right to be forgotten under the African Charter on Human and Peoples’ Rights

2.1 Defining ‘the right to be forgotten’

In her proposal for the reform of EU data protection rules, the EU Justice Commissioner Viviane Reding defined the RTBF (also known as the right to erasure) as the right for individuals to have their personal data deleted when it is no longer needed for a legitimate reason.18 However, Reding clarified that RTBF does not amount to ‘total erasure of history’.19 The underlying idea of the RTBF is not to allow individuals to alter their past and erase obnoxious traces of their lives,20 but to ensure that an individual’s present is not muddled up by their past. It therefore follows that the RTBF is a form of forced omission that mitigates against easy accessibility of personal information on the internet and makes such information more difficult to find.21 Succinctly put, ‘the right to be forgotten does not mean erasure of the information. It rather means to stop bringing back data from the past.’22

2.2 Historical development

The early development of the RTBF in Europe may be traced back to the French legal system. In the late 1970s,23 French law recognised ‘the right to oblivion’ (le droit à l’oubli) which entails ‘the right to silence over past instances that are no longer transpiring’.24 The right to oblivion is an innovation of the French criminal justice system that granted rehabilitated former convicts the right to demand erasure of personal data when the data no longer is relevant.25 In essence, the right to oblivion allowed criminal convicts the right to object to the publication of information about their conviction and incarceration once they served their sentence.26 Seemingly, the reason for allowing former convicts to object to the publication of information about their crimes is the realisation that maturation and transformation are part of people’s lives and once rehabilitated, ex-convicts must not be restrained to the reputational damage of the past.

From the 1980s onwards, more European jurisdictions started to enact domestic data protection laws that ostensibly recognised the RTBF under the concept of privacy.27 In 1995 the European Parliament and Council issued the Data Protection Directive (DPD),28 in which the RTBF can possibly be inferred. Articles 12(b) and 14 of the DPD provided data subjects with the right to ask for erasure of personal information, and to object to processing of personal information on legitimate grounds, respectively. Zanfir asserts that the combination of the article 12(b) of the DPD and article 14 possibly is tantamount to the RTBF.29

Notwithstanding the earlier recognition of the right to oblivion in the French legal system, which closely resembles the RTBF, and the possible inference of the RTBF in the DPD, the right remained unclearly recognised. To that effect, in 2012 the European Commission (EC) proposed for a comprehensive review of the DPD to put individuals in control of their personal data.30 The draft proposal for the GDPR provided for the RTBF under article 17, which afforded data subjects the right to demand that their personal data be erased under certain conditions.31 The draft GDPR was eventually made into law in 2016 and repealed the DPD. However, before the GDPR was made into law, the European Court of Justice (ECJ) effectively recognised the RTBF in the seminal case, Google Spain SL v Agencia Espanola de Proteccion de Datos (AEPD) (Google Spain case).32 The judgment of the Google Spain case was delivered in May 2014 and is considered the locus classicus to the official recognition of the RTBF in the EU.33 It therefore is prudent to first delve into the judgment before illuminating on article 17 of the GDPR.

2.3 The Google Spain case and emergence of the RTBF

By formally recognising the RTBF, the Google Spain case changed the terrain of the right to privacy in this digital age with far-reaching implications. At the pith of this case was the question of whether or not an individual is entitled to have personal information or links to such information totally erased or deleted upon request. Put alternatively, the ECJ was faced head-on with the question of whether the ‘right to be forgotten’ exists and is enforceable.

In this case, a Spanish national lodged a complaint with the Spanish Data Protection Agency (AEPD) against a local newspaper, Google Spain and Google Inc.34 The gist of the Spanish national’s complaint was two-fold. First, he sought to compel the local newspaper to remove or alter the pages relating to the publication in which his name appeared for a real estate auction connected with attachment proceedings for the recovery of social security debts.35 Second, the Spanish national also sought to compel Google Spain or Google Inc to remove or conceal links to the concerned article with the effect that such information ceases to appear in the search results.36 The Spanish national’s argument was that referencing web links to the concerned article had become irrelevant as the attachment proceedings concerning him had been fully resolved for a long period of time. The AEPD upheld the Spanish national’s complaint insofar as it concerns the complaint against Google Spain and Google Inc, and dismissed the complaint against the local newspaper citing that it was intended for a legitimate reason.37

Google Spain and Google Inc then appealed against the decision of the AEPD before the Spanish National High Court which ultimately reached the ECJ. Essentially, the ECJ was tasked to interpret the provisions of the DPD, which was then applicable to the municipal dispute between Google and AEPD together with the Spanish national. With respect to the RTBF, the following question was posed:

[Mu]st it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by [subparagraph (a) of the first paragraph of Article 14] of Directive 95/46, extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?38

It is noteworthy that the DPD under article 2(d) imposed responsibility for the use of data on the ‘controller’ of such data. The ECJ ruled that Google as a search engine, not only is a processor of personal data, but is also a ‘controller’ within the meaning of the DPD as it located information published by third parties, indexed such information and ultimately made it available to users.39 On that basis, the ECJ observed that name searches through the Google search engine potentially affects the individual’s right to privacy and data protection in a significant way as ‘that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet - information which potentially concerns a vast number of aspects of his private life’.40 Consequently, it held:41

The operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

By delivering the ruling in the Google Spain case, the ECJ practically recognised and enforced a new right which empowered data subjects to request erasure or removal of their personal information from the internet, thereby imposing a corresponding obligation on the search engine operators to conceal links to websites published by third parties that contain information on a person from the list of results displayed after a search based on that person’s name.42 The ECJ summarily asserted the RTBF. The ECJ’s judgment in the Google Spain case paved the way for the full-blown codification of the RTBF under the EU law. The RTBF is now expressly recognised under article 17 of the GDPR, which is discussed in the succeeding part.

2.4 Article 17 of the EU GDPR

Following the Google Spain case, the RTBF was codified under article 17 of the GDPR which is titled ‘Right to erasure (right to be forgotten)’. The chapeau to article 17(1)(a) reverberates the RTBF as articulated in the Google Spain case and provides that ‘[t]he data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay’.43

However, the same provision clarifies that the RTBF is not absolute as it is only applicable in six circumstances,44 including where the personal data is no longer necessary in the context of the purpose of its collection and procession; where personal data have been unlawfully collected; and where personal data has to be erased in compliance with other laws to which the controller is subject.

The underlying rationale of the right to erasure as provided in article 17(1) is that the data subject’s personal information ought to be erased upon the presence of the above highlighted conditions among other conditions as specifically mentioned in the GDPR.45 Further, article 17(2) places a positive obligation on the controller of personal data to take all reasonable steps to erase such information upon request and to inform third-party controllers of such request.

However, it is worth noting that the RTBF as envisaged under article 17 of the GDPR is not absolute as it is subject to the limitations identified in article 17(3). Article 17(3) expressly stipulates that the data subject’s right is not applicable where the processing is necessary for ‘exercising the right of freedom of expression and information’.46 Article 17(3) further provides that the right to erasure shall not apply for a few other reasons such as compliance with a legal obligation; for reasons of public interest, public health, and reasons for scientific or historical research and legal defence. It follows that the right to erasure under article 17 of the GDPR must be proportionate to the legitimately recognised interests and rights, such as the right to freedom of expression. In the Google Spain case the ECJ confirmed that the fundamental right to erasure ordinarily trumps the economic interest of the operator of the search engine and the public interest in finding such information unless justified by ‘preponderant interest of the general public in having ... access to the information’.47

4.1 The right to privacy and RTBF under the African human rights system

The African Charter is a progressive human rights instrument that includes a plethora of civil-political and socio-economic rights such as the rights to dignity,60 security of person,61 physical and mental health62 and education.63 However, it fails to provide for the right to privacy, despite this right being included in several international and other regional human rights instruments adopted before it. These include article 12 of the Universal Declaration; article 8 of the European Convention on Human Rights; and article 11 of the American Convention on Human Rights. Senegalese jurist and former judge of the International Court of Justice, Kéba M’baye, who is considered the father and drafter of the African Charter,64 had included the right to privacy in his draft charter.65 It is however not clear why this provision was not included in the final Charter which was adopted by African states in 1981. According to Plagis and Riemer,66 the drafting of the African Charter was influenced by several factors, including ‘the prominence of the notion of sovereignty; the focus on the African nature of the Charter; the tensions between the factions that supported civil and political rights and those that supported economic, social and cultural rights; and the minimalist approach to drafting a human rights treaty’.

These factors most likely contributed to the exclusion of the right to privacy and subsequently the RTBF. More so, in the late 1970s when the African Charter was being discussed by states, privacy concerns linked to technology and the internet were not yet as prominent as they are today. At that time the digital world was a mere dream. For example, the World Bank only started collecting data on internet usage around 1990,67 and some reports suggest that in 1980, a year after the African Charter was drafted in Monrovia, only 200 people were connected to a much limited version of today’s internet.68 The biggest social media platform, Facebook, was launched 25 years after the African Charter. In this context, the RTBF would have not been within the view of the drafters of the African Charter.

Nine years after the African Charter was adopted by African Heads of State and Government, they adopted the African Charter on the Rights and Welfare of the Child (African Children’s Charter) that grants the right to privacy to African children. Article 10 provides as follows:69

No child shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to the attacks upon his honour or reputation, provided that parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. The child has the right to the protection of the law against such interference or attacks.

While the African Children’s Charter bestows a right to privacy, which is justiciable under the African human rights system, it is only applicable to children to the exclusion of adults. Notwithstanding the African Children’s Charter’s efforts to entrench children’s right to privacy, privacy is a fundamental right which is equally important to children as it is to adults. The lacuna created by the African Charter to a large extent is filled by the constitutions of most African countries that provide for the full right to privacy.70 This includes the Constitutions of Algeria,71 Burundi,72 Kenya,73 Nigeria74 and Zimbabwe.75 These constitutions are buttressed by African states assenting to international instruments that provide for the right to privacy, in particular ICCPR.76 More so, the interpretation and implementation of human rights under international and regional human rights instruments is guided and directed by different organs and agencies of the UN, such as General Comments of the Human Rights Committee and reports of Special Rapporteurs.

Despite the omission of the right to privacy and ancillary data protection rights under the African Charter, the RTBF is expressly recognised under the African Union Convention on Cybersecurity and Personal Data Protection 2014 (Malabo Convention).77 Article 19 of the Malabo Convention refers the RTBF as the right to rectification or erasure and provides that ‘[a]ny natural person may demand that the data controller rectify, complete, update, block or erase, as the case may be, the personal data concerning him/her where such data are inaccurate, incomplete, equivocal or out of date, or use collection, use, disclosure or storage are prohibited’.

Although the Malabo Convention recognises the RTBF under article 19, it is not a binding and enforceable treat. This is because the Convention aims at harmonising cybersecurity and personal data protection legislation among AU member states and not to guarantee a human right upon a group of people.78 More so, the prospects of states implementing the Malabo Convention are low as it has taken nine years for only 15 states to ratify it. As such, it only came into effect on 8 June 2023.79

Further, the Declaration of Principles on Freedom of Expression and Access to Information in Africa adopted by the African Commission on 10 November 2019 in The Gambia (Gambia Declaration) recognises every person’s right to exercise autonomy in relation to their personal information.80 Even though the Gambia Declaration was adopted in response to the developments of the internet age,81 it does not expressly recognise an individual’s RTBF. Instead, under principle 39(3), the Declaration provides that states shall impose on internet intermediaries the duty to mainstream human rights safeguards into their processes of filtering online content and ensuring transparency on all requests of the removal of content. Principle 39(4) further outlined circumstances under which it would be acceptable for states to require the removal of online content by internet intermediaries. A closer look at Principle 39 of the Gambia Declaration, it appears that it is not meant to buttress an individual’s RTBF but rather to reinforce that states should not arbitrarily interfere with the individuals’ right to access information online. However, principle 40(1) of the Gambia Declaration acknowledges every individual’s right to privacy and protection of personal information and Principle 42(4) the right to exercise autonomy in relation to their personal information under which the RTBF may be inferred.

It follows that the lex imperfecta within the African Charter persists as the RTBF can only be read into the right to privacy provisions in different international instruments and the Malabo Convention, but the latter is only ratified by a few countries. The following parts show how this lex imperfecta can be rectified through the reading of the RTBF into the African Charter through three methods.

4.2 Recognising the right to be forgotten under the SERAC principle

The RTBF may be justiciable under the African Charter by invoking the SERAC principle set in the African Commission’s decision in Social and Economic Rights Action Centre & Another v Nigeria (SERAC).82 The brief facts of the communication were that the military government of Nigeria had been directly involved in oil production through the state oil company, the Nigerian National Petroleum Company, the majority shareholder in a consortium with Shell Petroleum Development Corporation, and that these operations had caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people. It was alleged that the oil consortium had disregarded the health or environment of local communities by dumping toxic waste into the environment and local waterways. It was further alleged that the Nigerian government had condoned the degradation by failing to take measures to protect the health and environment of the Ogoni people. Further, Nigerian security forces attacked Ogoni villages following lawful protests to the degradation of the health and environment, by the Ogoni people.

SERAC thus alleged that the Nigerian government’s conduct violated, among others, the right to housing or shelter, and the right to food. Both these rights are not explicitly provided for under the African Charter. SERAC alleged that the right to housing or shelter is implicitly recognised by the African Charter as it could be read into article 14 (the right to property), article 16 (the right to physical and mental health), and article 18(1) (the right to family). The African Commission agreed with SERAC’s assertions and held that:83

Although the right to housing or shelter is not explicitly provided for under the African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under Article 16 above, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected. It is thus noted that the combined effect of Articles 14, 16 and 18(1) reads into the Charter a right to shelter or housing which the Nigerian Government has apparently violated.

SERAC further argued that the right to food is implicitly recognised under the African Charter as it could be read into article 4 (the right to life), article 16 (the right to physical and mental health), and article 22 (the right to economic, social and cultural development). The African Commission decided in SERAC’s favour as it found that the right to food was inseparably linked to human dignity. The Commission held:84

The right to food is inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of such other rights as health, education, work and political participation. The African Charter and international law require and bind Nigeria to protect and improve existing food sources and to ensure access to adequate food for all citizens.

It therefore follows that a human right can be implicitly read into the African Charter if a violation of that right is tantamount to a violation of a combination of rights explicitly provided under the African Charter. In so far as the RTBF is concerned, we submit that it is inextricably linked to some of the rights expressly provided by the African Charter, which includes article 5 (right to dignity), article 9 (freedom of information and expression), article 10 (freedom of association), article 16 (right to physical and mental health), and article 22 (right to economic, social and cultural development).

The RTBF is premised on erasing or rectifying information that moulds public perception about people - thus its main focus is on the dignity and honour of a person. The right to dignity is an important right within the global human rights system. According to the Court in Mugesera v Rwanda85 (Mugesera case) the purpose of protecting human rights is to preserve human dignity. Regarding a violation of article 5 of the African Charter in particular, the Court agreed with the Commission’s view that it ‘can be interpreted as extending to the broadest possible protection against abuse, whether physical or mental’.86 In International Pen v Nigeria it was held that ‘the prohibition in article 5 included not only actions which cause serious physical or psychological suffering, but also actions which humiliate the individual or force him or her to act against his will or conscience’.87

In considering whether the right to dignity protected in article 5 of the African Charter has been violated, the Court held that it considers that ‘the cruelty or inhumanity of the treatment must involve a certain degree of physical or mental suffering on the part of the person, which depends on the duration of the treatment, the physical or psychological effects of the treatment, the sex, age and state of health of the person. All this must be analysed on a case-by-case basis.’88

The jurisprudence of the African Commission and African Court indicates that where a data processor or controller refuses to erase or rectify personal information which causes physical or mental suffering on a person it may be in violation of articles 5 and 16 of the African Charter. Take, for example, a newspaper article published on the internet that reveals the name and home address of an alleged fraudster. Even if such a person were to be acquitted by a competent court the newspaper article will remain on the internet available to readers forever. A simple search of the acquitted person’s name will likely reveal the article containing allegations of fraudulent activities thus imputing a reputation of criminal behaviour on the acquitted person. This in turn will cause serious mental suffering on the acquitted person as inaccurate information about them is available for the entire world to see. If their personal information is not erased, particularly their home address, this will likely lead to retribution from victims of the alleged fraud who may assume that the acquitted person ‘got away with it’.

Article 9(1) of the African Charter provides that every individual shall have the right to receive information. Data processors protect and promote this right by providing information via the internet. However, it would undermine the purpose of granting a right to receive information if an individual was to receive inaccurate information or information that violates the dignity and honour of another. Furthermore, article 9(2) provides the right to freedom of expression. The African Court has on several instances held that the right to freedom of expression is fundamental to human development as it is the vehicle in which humans exchange opinions.89 Information that is inaccurate or perpetuates the violation of human dignity cannot foster accurate or humane opinions. Subsequently, human development is undermined meaning that the right to freedom of expression would fail to achieve the purpose for its inclusion in the African Charter. More so, the right to freedom of expression is intrinsically linked to the right to freedom of association protected under article 10 of the African Charter. As such, a violation of article 9 can surmount to a violation of article 10 of the African Charter.90

Under article 22 of the African Charter all people have a right to their economic, social, and cultural development which is rooted in their freedom and identity. Jurisprudence on the African Charter shows that where a person is disrupted from participating in their own economic, social and cultural development such conduct may constitute a violation of article 22.91 It thus follows that when information available on the internet disrupts a person from participating in activities that bring about their economic, social or cultural development it may violate article 22. Human rights are interdependent and the number of rights under the African Charter that may possibly be violated by violating the RTBF cannot be exhausted in this article. Needless to say, it is important that the RTBF is proportionally protected, and this should be done within the confines of the law. Generally, this ought to be within boundaries granting the erasure or rectification of information available on the internet that is incorrect, inaccurate, outdated or perpetuates the violation of human dignity and honour.

4.3 Recognising the right to be forgotten under the progressive application principle

Articles 60 and 61 of the African Charter provide flexibility in interpreting and applying human rights by the African Commission and the African Court when called upon to do so. Both articles enable the Commission and the Court to draw inspiration from international human rights law when interpreting, applying or developing human rights under the African Charter. Article 60 of the African Charter essentially affords the Commission and the Court by extension the liberty to draw motivation from various instruments on human and peoples’ rights, including the Universal Declaration, UN instruments and other human rights instruments adopted by African countries such as those adopted by the regional economic communities (RECs).

Article 61 of the African Charter supplements the provisions of article 60 as it allows the African Commission and the African Court to consider - when called upon to do so - the applicable rules laid down by other general and international conventions recognised by AU member states, general African practices aligned to international norms on human rights, customary law, general principles of law recognised by African states and judicial precedents.

The purpose of including the above provisions in the African Charter is to provide the Court and the Commission in its general role of promoting human and peoples’ rights with a source for contemporary human rights standards whenever the African Charter does not contain applicable human rights provisions.92 In Good v Botswana it was held that the African Charter must be interpreted in light of international norms and consistently with the approach of the other regional and international human rights bodies.93 The Court has on several occasions borrowed from different international instruments and other regional human rights courts or forums. It has frequently referred to judgements of the ECJ.94 In the context of RTBF, this means that the Court can cure the lex imperfecta created by the African Charter by referring to the jurisprudence of the ECJ on the RTBF in its advisory opinions when called upon to do so, particularly the Google Spain case discussed above. More so, while the Convention on Data Protection 1981, which was succeeded by the GDPR, is a European treaty, five African countries have signed the treaty, namely, Cabo Verde, Mauritius, Morocco, Senegal and Tunisia.95 Burkina Faso has also requested to accede to the treaty.96 Over and above the Malabo Convention and the Gambia Declaration, this shows that African states and the African Union are recognising the need for a regulated autonomy over personal data on the internet.

4.4 Adopting the RTBF under the Vienna Convention

Whenever an international court or other international dispute settlement body has to interpret and apply an international treaty it must do so in terms of the Vienna Convention on the Law of Treaties (VCLT). The VCLT has played a critical role in assisting the Commission and later the Court in the interpretation and application of the African Charter. In its deliberations the African Court has on several instances adopted and adhered to article 31 of the VCLT,97 which requires a holistic approach to interpreting and applying treaty provisions. Article 31 of the VCLT provides for contextual interpretation of the treaty considering its objects and purpose.98 Article 31 of the VCLT further provides that together with the context of the treaty, the relevant rules of international law applicable between the parties’ relations and subsequent agreement and practice in the interpretation and application of the treaty shall be taken into account.99

As far as locating the RTBF under the African Charter is concerned, this means that the African Charter must be interpreted holistically as an instrument which aims to, as enunciated in its preamble, promote and protect human rights in Africa and that such rights are not limited to those contained in the African Charter only. The approach of the Commission in the SERAC case shows that the African Charter is not the beginning and end of all human rights in Africa. More so, where some human rights provisions are non-existent in the African Charter they can be drawn from the subsequent agreements or actions of the parties to the African Charter. The International Law Commission’s Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to The Interpretation of Treaties 2018 (Draft Conclusions) provide for an expanded meaning to subsequent agreements and practices.100 The Draft Conclusions extend the meaning to include external and internal acts of parties to the treaties. This includes legislative acts, executive acts, judicial acts, official acts, voting in international organisations and pronouncements of expert treaty bodies. In this context, the Malabo Convention and the Gambia Declaration are prime examples of a subsequent agreement and practice advocating for the RTBF and personal data autonomy to be applied and recognised in Africa.

Moreover, different legislative efforts show that the RTBF is being adopted in African states. Data protection legislations in Ghana,101 Kenya,102 Nigeria,103 South Africa104 and Zimbabwe105 show that African states are adopting the RTBF as part and parcel of their domestic law. However, there is no universal approach to the inclusion of the right.

4.5 Challenges to enforcing RTBF

Although the RTBF possibly is justiciable through inference from the privacy provisions under the above-highlighted treaties and conventions, the fact that the right is not expressly recognised exposes it to some implementation barriers. The inference of the right from the inter-linked rights deprives individuals, the domestic courts and the African Commission of the broader understanding of the scope and limitations of the RTBF. With the exception of the Malabo Convention, all other instruments under which the RTBF may be inferred do not outline the nature of personal data that can be erased and/or the circumstances of removal. In terms of article 19 of the Malabo Convention, for the RTBF to be enforced, the personal data must be ‘inaccurate, incomplete, equivocal or out of date, or [its] use collection, use, disclosure or storage are prohibited’.106 However, some concepts such as ‘equivocal or out of date’ are not universally defined nor is there any established precedent on what constitutes equivocal or out of date data. This quandary becomes more apparent when removal or erasure concerns newspaper articles, considering that newspapers also serve as archives of historical data on past events for research and statistical purposes.107 Thus, it is difficult to draw a line on when newspaper articles are considered out of date.

Moreover, the absence of a clearly defined scope and limitations of RTBF sets it up for a clash with other established rights such as the right to freedom and expression on the internet and access to information.108 The enforcement of the RTBF without guiding parameters can potentially have negative repercussions on free speech on the internet as it may lead to removal of necessary and important public interest information. For example, Google previously acknowledged to have erroneously removed links to some newspaper articles by the Guardian newspaper.109 Thus, reading the RTBF in the African Charter without giving it content and guarding it against malpractice, renders it susceptible to abuse.

Another challenge to the implementation of the RTBF in Africa is the jurisdictional issue. Notwithstanding that some African states have adopted national laws expressly providing for the RTBF, its enforcement remains a challenge considering the borderless nature of the internet and the fact that corporations that control personal data on the internet such as Google have no offices in most African countries.110 Thus, should corporations that control personal data refuse to honour the request to remove links to personal data, individuals in most African countries cannot enforce the right in their municipal courts due to jurisdiction barriers unless those corporations agree to submit to domestic jurisdiction. In the matter of X v Privacy Commissioner of Personal Data111 the Hong Kong Administrative Appeals Board (AAB) was, among others, tasked with determining the territorial boundary of Hong Kong’s Personal Data (Privacy) Ordinance (PDPO) within the context of the RTBF. The AAB upheld the decision of the Privacy Commissioner that the territorial jurisdiction of the PDPO is only limited to the data controllers operating or situated in Hong Kong. In this instance, the data controller was Google LLC and was operating from the United States of America and not in Hong Kong, hence it had no obligation to remove online content in Hong Kong on the sole ground of RTBF.112 Given that data-controlling corporations operate outside of most African countries, most subjects of personal data in Africa may run in the same predicament as the data subjects in Hong Kong. However, data subjects can still enforce the RTBF in national courts as precedent in Latin America shows that in most cases data controlling corporations easily submit to the national jurisdictions.113

Notwithstanding the above challenges, the regulated RTBF is essential in the digital age to counter the damning impact of perpetual storage of data on the right to self-autonomy over personal information and susceptibility to misuse and misinterpretation.114 Currently, the RTBF under the right of privacy or as a stand-alone right is recognised in a fragmented manner across the African human rights system, hence inadequately protected. The recognition of the RTBF by reading it into the African Charter is essential as it would create a pathway for robust law reforms related to the protection and autonomy over personal data in Africa’s national jurisdictions.115 As Singh and Power advanced, the prevalence of the African Charter in the African human rights system rendered it ‘both a binding and persuasive advocacy tool’.116 The superior status the African Charter enjoys in the African human rights system justifies the need for the RTBF to be recognised as part and parcel of the Charter to ensure adequate protection. The recognition of the RTBF under the Charter will further enable the African Commission to carry out its general role of promoting human and peoples’ rights by providing soft law guidance to the realisation of the RTBF through declarations and model laws.