RIGHT TO BE FORGOTTEN OUTLINED IN ARTICLE 17

The Supreme Court of India recently consented to hear a case that may redefine the "right to be forgotten" in India, a country without a statute at the moment.
The "right to erasure," as it is referred to in European privacy law, is the right of an individual to have their digital footprint removed from the public eye when it infringes upon their privacy. It is anticipated that the result will have a major impact on how this right is seen and exercised in the nation. The right to be forgotten is a subset of the right to privacy, which is a basic right under Article 21 of the Indian Constitution.

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RIGHT TO BE FORGOTTEN

When personal information is out-of-date, unnecessary, or detrimental to one's privacy, people have the right to ask for it to be deleted from digital platforms.

REASONS FOR THE ADOPTION OF 'RIGHT TO BE FORGOTTEN'

• Control Over Personal Data: In the digital age, people ought to be able to manage their identity and personal data.

  • By monitoring and documenting internet activity, governments and commercial organisations can seriously infringe upon privacy.
  • Personal information, including private facts and intimate images, is frequently posted online without permission.
  • The 'Right to Be Forgotten' provides a solution to this problem by enabling people to take such content down from the internet.

• Reducing Digital Damage: Having inaccurate or out-of-date information can have a lasting detrimental impact on a person's life, including their chances for advancement in their career and personal relationships. This right permits the removal of irrelevant or outdated data, which helps to lessen the impact of such harms.

  • People shouldn't be punished for their past actions all the time, especially if they have grown or changed. They have the right to be free from unfair judgement based on out-of-date information.

• Right to Privacy: When personal data is unlawfully disclosed to the public, there is no legal claim to that information.

  • The Right to Be Forgotten protects people from having to deal with the consequences of having their personal information revealed illegally.

OTHER COUNTRIES

• Countries like Canada, the United Kingdom, Argentina, and Japan have adopted similar laws. In 2023, a Canadian court upheld the right to demand search blocks on personal data.
• California: The 2015 Online Eraser law allows minors to remove their posted information. The 2023 DELETE Act extends this right to adults, allowing them to delete personal information collected by data brokers.

INTERPRETATION OF RIGHT TO BE FORGOTTEN IN INDIA

• Current Status: India does not have a specific statutory framework for the right to be forgotten. However, the concept has been referenced in the context of privacy and digital rights.

• Judicial Recognition: The 2017 ruling in Justice K.S. Puttaswamy v. Union of India recognized the right to privacy as a fundamental right under the Constitution, which implicitly includes the right to be forgotten.

  • In the Puttaswamy case, the Court acknowledged the right to be forgotten but clarified that it should not be absolute. It outlined scenarios where this right may not apply, such as for public interest, public health, archiving, research, or legal claims.
  • Stated that the recognition of such a right would only mean that an individual should be able to remove their personal data when it is no longer relevant or serves no legitimate interest.

• Digital Personal Data Protection Act, 2023: This Act recognizes the right to “erasure” but the application of these laws to court records and publicly available data remains unclear, with conflicting interpretations in the courts.

• Information Technology Rules, 2021: Obligates intermediaries to remove or disable access to content violating privacy within 24 hours of a complaint.

JUDICIAL PRECEDENTS REGARDING THE RIGHT TO BE FORGOTTEN

• Rajagopal vs. State of Tamil Nadu Case, 1994: This landmark case discussed the "right to be let alone" but distinguished it from the publication of public records, such as court decisions, which remain a legitimate subject for public comment.

• Dharamraj Bhanushankar Dave vs. State of Gujarat, 2017: The Gujarat High Court denied a request to remove details of an acquittal from public records, emphasizing that court orders should remain accessible.

• Orissa HC (2020): The Orissa High Court, dealing with a criminal case involving “revenge porn,” emphasized the need for extensive debate on the right to be forgotten.

  • The Court noted that the implementation of this right presents complex issues requiring clear legal boundaries and redressal mechanisms.

• Delhi HC (2021): Extended the right to be forgotten in a criminal case, allowing the removal of details from search results to protect the petitioner’s social life and career prospects.

• Supreme Court Order (July 2022): The Supreme Court directed its registry to create a mechanism for removing the personal details of a couple involved in a contentious marital dispute from search engines. This expanded the interpretation of the right to be forgotten.

• Kerala High Court (December 2023): Ruled that the right to be forgotten cannot be applied to ongoing court proceedings, citing concerns about open justice and public interest.

  • The court suggested that legislative clarity is needed but acknowledged that the right could be considered depending on specific case details and time elapsed.

• Himachal Pradesh High Court (July 2024): Directed the redaction of names of both the accused and the victim in a rape case, highlighting that once acquitted, an individual should not continue to carry the stigma of the accusations.

CONCERNS DUE TO INCONSISTENT JUDICIAL APPROACHES

• Lack of Uniformity: The varied rulings by different High Courts create confusion about the application of the right to be forgotten, leading to inconsistent enforcement and potential legal uncertainty.

• Balancing Privacy and Public Interest: Courts struggle to balance individual privacy rights with the principle of open justice and public access to information, making it difficult to establish clear guidelines.

• Impact on Public Records: The distinction between personal privacy and public records, as discussed in Rajagopal vs. State of Tamil Nadu, 1994, poses challenges.

  • Courts must navigate how to protect personal privacy without undermining the accessibility and legitimacy of public court records.

• Need for Legislative Clarity: The absence of a comprehensive legal framework contributes to the inconsistent application of the right, highlighting the need for legislative intervention to define clear standards and procedures.

• Potential for Overreach: Courts’ differing approaches may prompt concerns about overreach and the integrity of digital records.

  • There is a risk that private entities might face undue pressure to remove content, potentially affecting the accuracy and completeness of online information.

• Balancing Rights: Courts need to balance the Right to Be Forgotten with freedom of speech and expression. Additionally, there is a need for clear guidelines to resolve conflicts between Right to Be Forgotten and the Right to Information Act, 2005.

• Other Challenges: Enforcing the Right to Be Forgotten across digital platforms and jurisdictions is challenging due to compliance issues and technical constraints like data replication.

  • Ensuring compliance from search engines, websites, and other intermediaries requires robust legal and technical mechanisms. Complete removal of information from the internet can be technically difficult.

• Restriction to Journalism: It could restrict journalists from disclosing certain people's histories and past activities which could hinder journalists' ability to impart information and ideas freely through media, affecting the democratic role of journalism.

WAY FORWARD

• Legislative Framework: Enact a comprehensive data protection law with 'right to be forgotten', define clear criteria for data erasure, and establish an independent data protection authority. This body would possess expertise in privacy, technology, and law, ensuring consistent and impartial decisions.

• Overreach: Prevent misuse of the 'right to be forgotten' through clear definitions, limitations, and oversight mechanisms. Develop clear judicial guidelines for balancing privacy and public interest in 'right to be forgotten' cases, considering factors such as the nature of the information, public interest, and time elapsed since publication.

• Industry Self-Regulation: Encourage industry self-regulation to develop responsible data handling practices. Promote data minimisation and secure data deletion procedures. Invest in research and development to address technical challenges related to data deletion and anonymization.

• Public Awareness: Conduct public awareness campaigns to educate individuals about data privacy rights and responsibilities. Foster a culture of responsible online behaviour.

CONCLUSION

The "Right to Be Forgotten" is gaining importance in legal and technical domains, reflecting its growing role in privacy protections. In India, the lack of specific legislation means this right is currently addressed through judiciary, but future legislation is anticipated to provide a clearer framework with the ongoing efforts to recognize this right.