RIGHT TO BE FORGOTTEN: THE ONGOING BATTLE BETWEEN PRIVACY AND THE INTERNET’S MEMORY

INTRODUCTION

In an era where information dissemination occurs in milliseconds, the concept of privacy seems to be a dream.

The internet has transformed into a vast repository of personal data, making it difficult for individuals to control their digital footprints. The Right to be Forgotten (RTBF) emerges as a safeguard to protect individuals’ privacy by allowing them to request the removal of specific personal data from search engines and online platforms when such information is inaccurate, inadequate, irrelevant, or excessive under particular conditions.

Right to be forgotten, also referred to as Right to be Erasure means an individual can claim for deletion of specific personal data available on the search engines or other online platforms which are inadequate, inaccurate, irrelevant or excessive within specific conditions.

The evolution of this right traces back to 1998, when a Spaniard faced some financial difficulties and wanted to auction his property. The advertisement was published in a newspaper and later found its way onto the internet, since then he has never been forgotten. Even after his financial crunches were over, online search results continued to portray him bankrupt, tarnishing his reputation. Seeking redress, he approached the European Court of Justice (ECJ), the court ruled against search engine, affirming that residents of the European Union (EU) could request the removal of certain personal information from search engines, subject to restrictions. This landmark decision gave birth to the concept of the Right to be Forgotten.

In India, case of Justice K.S. Puttaswamy v. Union of India opened the gateway to the debate over the Right to be Forgotten. The Supreme Court of India recognized Right to Privacy as a Fundamental Right under the Constitution, which implicitly recognize the Right to be Forgotten. However, the Court clarified that this right is not absolute and should be applied in cases where personal data is no longer relevant or serves no legitimate public interest.

INDIA’S STAND ON RIGHT TO BE FORGOTTEN: LEGAL PERSPECTIVE AND DEVELOPMENTS.

India does not have any codified law on the Right to be Forgotten. But the concept has received judicial recognition through various judgments. The Supreme Court’s ruling in K.S. Puttaswamy v. Union of India (2017) was a pivotal moment, establishing the Right to Privacy under Article 21 of the Constitution of India and opening avenues for RTBF.

The roots of Right to Privacy in India can be traced back to Rajagopal v. State of Tamil Nadu (1994), where the Supreme Court upheld the Right to Be Let Alone, but subject to exceptions for public documents and judicial records that serve legitimate public interest.

Several High Courts and Supreme Court have also weighed in on the matter:

• Kerala High Court (2016, Civil W.P. No. 9478 of 2016) directed Indian Kanoon, a legal database, to remove a judgment revealing the identity of a rape victim.
• Gujarat High Court (Dharanraj Bhanushankar Dave v. State of Gujarat & Ors., 2017) declined a petition to remove non-reported judgments from search engines, stating that their publication does not infringe any Fundamental Rights.
• Karnataka High Court (Sri Vasunathan v. The Registrar General, High Court of Karnataka & Ors., 2017) acknowledged RTBF as an evolving legal principle and permitted the redaction of the name of the petitioner’s daughter from court records, balancing modesty, privacy, and the evolving right to be forgotten.
• Delhi High Court (Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd., 2019) affirmed that RTBF and the Right to Be Let Alone are integral aspects of privacy of an individual.
• Delhi High Court (Jorawar Singh Mundy v. Union of India & Ors.) deliberated on whether privacy rights should outweigh public access to judicial records. The debate still ongoing in Indian jurisprudence.
• Supreme Court (Ikanoon Software Development Pvt. Ltd. v. Karthick Theodore, 2024) overturned a Madras High Court judgment that had granted an acquitted petitioner’s request to remove his name from a sexual assault judgment. The Supreme Court ruled that judicial decisions are public records and RTBF cannot be invoked in every situation.

Additionally, Information Technology Rules, 2021 and the Digital Personal Data Protection Act, 2023 provide limited recognition of RTBF. Under these provisions, intermediaries must remove content violating privacy rights within 24 hours, and individuals may seek data erasure where applicable.

GLOBAL OUTLOOK ON DELETING THE UNFORGETTABLE MEMORIES OF THE INTERNET

Legal adoption of the Right to be Forgotten across Globe:

• European Union: The debate over RTBF sparked by ECJ ruling in Google Spain SL v. Agencia Española de Protección de Datos (AEPD) This set a precedent, allowing individuals to request for deletion of information that is inaccurate, inadequate, irrelevant, or excessive. The General Data Protection Regulation (GDPR, 2017) further cemented this right under Article 17 (Right to Erasure).
• Japan: Japan was the first country in Asia to adopt the Data Protection Regulation to protect the interest of its citizens. The Protection of Personal Information Act empowers individuals to demand data suspension or deletion if used beyond its stated purpose or without consent.
• Australia: The RTBF is not explicitly recognized by the Australian laws, but Australian Privacy Principles (APP) mandate that businesses destroy or de-identify outdated, incomplete, or misleading personal information upon request.
• United States: The First Amendment’s emphasis on freedom of speech creates significant hurdles for implementing RTBF. However, some states, such as California, offer limited rights to request data removal. On the contrary, some states like California provide limited rights to allow an individual to make requests for deletion of data from the internet.

RIGHT TO BE FORGOTTEN – THE CHALLENGES AHEAD

Despite its growing recognition, RTBF faces significant legal, technical, and ethical challenges:

1. Jurisdictional Conflicts: The borderless nature of the internet complicates enforcement. Should RTBF apply only within a specific nation or globally?
2. Conflicts with Other Rights: RTBF risks infringing upon Freedom of Speech and the Right to Information. The removal of information may hinder public access to knowledge, especially in matters of public interest.
3. Threat to Journalism: Unchecked implementation of RTBF may curtail journalistic freedom, limiting the dissemination of critical information.
4. Technical and Ethical Concerns: Filtering and determining the extent of data removal pose challenges. Who decides what is irrelevant or excessive, and how should this be enforced?

THE WAY FORWARD

1. Universal Recognition and Legal Framework: There is a pressing need for a standardized global legal framework to ensure consistent enforcement of RTBF while protecting competing rights.
2. Harmonization with Other Rights: A balanced approach among all the rights is necessary, ensuring RTBF does not unduly curtail freedom of expression or restrict public access to legitimate information.

CONCLUSION

In the digital era where the footprint of the internet is traced everywhere, the Right to be Forgotten is the need of this hour. As concerns over data protection continue to rise, RTBF has emerged as a significant legal development. However, its implementation must strike a balance between privacy rights, public interest, and freedom of expression. The evolving legal discourse surrounding RTBF underscores its importance in shaping the future of digital privacy, and ongoing efforts aim to integrate it into a well-defined statutory framework. While the internet’s memory may never be fully erased, RTBF strives to ensure that individuals can regain control over their personal narratives in the digital world.

Author: Mr. Vipul Maheshwari, Managing Partner