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The Grey Digital Divide and Right to be Forgotten: An Inter-American Approach

Abstract

Old persons must know about the existence of records containing personal information, who keeps them, for which purpose, and in which format. However, how can states guarantee the right to be forgotten in health care system when people do not understand how digital archives work? Thus, to answer this question it is necessary to review the characteristics of the information shared and what informed consent implies in the digital era. In this paper I present the Inter-American approach to this issue.

The Inter-American Convention on Protecting the Human Rights of Older Persons (IACPOP) entered into force in January 11, 2017, and among others, it promotes the rights to health and freedom of expression of the elderly. It establishes that states parties must obtain access to appropriated health-related information as a mechanism to ensure that older people provide informed consent in any type of medical procedure (IACPOP, articles 11, 19). However, due to the fact that it does not contain an express reference to the right to be forgotten, in this article I review the obligations adopted by states parties to the IACPOP, the Inter-American Convention of Human Rights, and the principles developed by the Inter-American system regarding the right to access information and the right be forgotten.

After mapping the situation of older persons in Latin-America and analyzing the scope of protection granted by the informed consent, I discuss how the mechanism of habeas data can be used by older people to exercise their right to be forgotten. This is an understudied group who is facing the problems derived from the uses of new technologies in health care systems, and by using an Inter-American approach I present legal answers to the proposed research questions.

 

Mariateresa Garrido Villareal
– PhD Candidate, UN Mandated University for Peace, Costa Rica

 

  • Background
    Currently a UPEACE Scholar at the University for Peace, Mariateresa also works on developing courses related to the exercise of the right to freedom of expression in the digital era and teaching international law courses in the Master’s program offered by the University for Peace with particular emphasis on the study of human rights, freedom of expression, media, gender, and the relationship between these topics with peace and conflict studies. She is also a consultant at the UNESCO Regional Office in San José on the development of the Safety of Journalists Plan of Action in El Salvador and Honduras.
  • Education
    – Specialist in International Economic Law and Integration, Universidad Central de Venezuela, Caracas, Venezuela, 2016
    – Master of Arts in International Law and the Settlement of the Disputes, UN Mandated University for Peace, San José, Costa Rica, 2014 (Awarded UPEACE Fellow Scholarship for M.A. Students)
    – Law Degree, Universidad Central de Venezuela, Caracas, Venezuela, 2009
  • Selected Publications
    – Forthcoming dissertation title: “The Exercise of the Right to Freedom of Expression in the Digital Era: The Protection of Venezuelan Citizen Journalists”.
    – Garrido V., M. (Forthcoming). Journalists Not Spies: The Importance of the Legal Distinction for the Protection of Journalists during Armed Conflicts. Journal of the Association for Journalism Education.
    – Garrido V., M. (2017). (Ed.) Human Rights and Technology. The 2030 Agenda for Sustainable Development. San Jose: University for Peace.
    – Garrido V., M. (2015). Does ideology matter for mass media democratization in Latin America? Peace & Conflict Monitor. San Jose, Costa Rica. Available at: http://www.monitor.upeace.org/innerpg.cfm?id_article=1090.