A Posthuman Data Subject? The Right to Be Forgotten and Beyond

Abstract

The general assumption in the West is that there still is an inherent difference between persons and things. This divide informs how "the human" and human subjectivity are constructed as distinct from all others. Recently, the distinction has been challenged in posthumanist theory, where it has been argued that the divide between human and nonhuman agents - or rather, bodies - is always an effect of a differential set of powers. For this reason, the boundaries between human and nonhuman are always in flux. As posthumanist theorists have argued, this change in boundaries may be specifically visualized in relation to digital technology. Today, such technologies obfuscate the boundaries between persons and things, and the extensive utilization of smartphones, social media, and online search engines are just three common examples. In parallel to the continuous expansion of digital technologies, critical understandings of how "data" and human personhood are produced are increasingly raised in legal theory. Recent developments establishing increased privacy online through EU law, including the new General Data Protection Regulation and the famous Right to Be Forgotten case could possibly be understood to have struck a balance between interests of the human-in the form of privacy - and the digital - in the form of information diffusion. In this Article, a posthumanist theoretical perspective is utilized to show how the new data protection legislation, with a focus on the Right to Be Forgotten, produces such protection yet continuously withdraws data as a separate body from human bodies. For this reason, it is argued that the construction of new human rights, such as those considering data protection, would benefit from understanding how the separation is, in itself, an effect of advanced capitalism.