03 September 2024 – The Indian Express

Right to Be Forgotten

Why in News?

• Recent Developments: The Supreme Court of India has agreed to hear a significant case that could reshape the “Right to Be Forgotten” within the country, a concept that currently lacks a formal statutory framework.
• Global Perspective: This right, widely recognized in European privacy laws as the “Right to Erasure,” enables individuals to remove digital traces that infringe upon their privacy.
• Expected Impact: The case’s outcome is poised to have far-reaching implications on how this right is interpreted and enforced in India.

Understanding the Right to Be Forgotten:

Definition

• The right to be forgotten allows individuals to request the removal of their personal data from digital platforms when such information is outdated, irrelevant, or harmful to their privacy.

European Context

• Origins: The Luxembourg-based Court of Justice of the European Union (CJEU) established this right in 2014 during the “Google Spain case.” The court mandated that search engines must comply with requests to remove data that is “inadequate, irrelevant, or no longer relevant.”

Legal Enshrinement

• The right is codified under Article 17 of the General Data Protection Regulation (GDPR) in the EU, emphasizing the principle of informational self-determination and the right to control personal data.

Global Adoption

• Other Countries: Nations like Canada, the UK, Argentina, and Japan have implemented similar laws. In 2023, a Canadian court reinforced this right, allowing individuals to block search results related to their personal data.
• California’s Legislation: The 2015 Online Eraser law enables minors to remove content they’ve posted online. The 2023 DELETE Act extended this right to adults, providing them with the ability to erase personal information collected by data brokers.

The Right to Be Forgotten in India:

Current Status

• India lacks a specific statutory framework for the right to be forgotten, though the concept has been acknowledged in discussions on privacy and digital rights.

Judicial Recognition

• Landmark Ruling: In the 2017 case of Justice K.S. Puttaswamy v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right under the Indian Constitution, implicitly incorporating the right to be forgotten.
• Conditional Right: The court in the Puttaswamy case acknowledged the right to be forgotten but clarified that it is not absolute. The right may be limited in cases involving public interest, public health, archiving, research, or legal claims.

Legislative Developments

• Digital Personal Data Protection Act, 2023: Recognizes the right to erasure, though its application to court records and publicly available data remains ambiguous, with varying interpretations in the courts.
• Information Technology Rules, 2021: Mandate that intermediaries remove or disable access to content violating privacy within 24 hours of receiving a complaint.

Judicial Precedents in India:

• Rajagopal vs. State of Tamil Nadu, 1994: This pivotal case discussed the “right to be let alone,” distinguishing it from the publication of public records like court decisions, which remain legitimate subjects for public commentary.
• Dharamraj Bhanushankar Dave vs. State of Gujarat, 2017: The Gujarat High Court rejected a request to expunge details of an acquittal from public records, emphasizing the need to keep court orders accessible.
• Orissa High Court (2020): In a criminal case involving “revenge porn,” the court called for an extensive debate on the right to be forgotten, recognizing the complex issues it raises.
• Delhi High Court (2021): The court extended the right to be forgotten in a criminal case, permitting 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 personal details of a couple involved in a marital dispute from search engines, broadening the interpretation of the right to be forgotten.
• Kerala High Court (December 2023): Ruled that the right to be forgotten cannot apply to ongoing court proceedings, highlighting concerns about open justice and public interest, while suggesting the need for legislative clarity.
• Himachal Pradesh High Court (July 2024): Directed the redaction of names in a rape case, emphasizing that once acquitted, an individual should not bear the stigma of the accusations indefinitely.

Challenges Stemming from Inconsistent Judicial Approaches:

• Lack of Uniformity: The diverse rulings by different High Courts create confusion regarding the application of the right to be forgotten, leading to inconsistent enforcement and legal uncertainty.
• Balancing Privacy and Public Interest: Courts struggle to reconcile individual privacy rights with the principle of open justice and public access to information, complicating the establishment of clear guidelines.
• Impact on Public Records: The challenge lies in protecting personal privacy without undermining the accessibility and legitimacy of public court records, as seen in the Rajagopal case.
• Need for Legislative Clarity: The absence of a comprehensive legal framework contributes to the inconsistent application of the right, underscoring the need for legislative action to define clear standards and procedures.
• Potential for Overreach: Concerns about judicial overreach and the integrity of digital records arise, with the risk that private entities may face undue pressure to remove content, potentially affecting the accuracy and completeness of online information.
• Balancing Rights: The need to balance the Right to Be Forgotten with freedom of speech and expression, along with resolving conflicts between this right and the Right to Information Act, 2005, remains a significant challenge.
• Technical and Jurisdictional Challenges: Enforcing the right to be forgotten across digital platforms and jurisdictions presents challenges due to compliance issues and technical constraints like data replication.
• Impact on Journalism: There are concerns that this right could restrict journalists from disclosing certain people’s histories and past activities, potentially hindering the free flow of information and the democratic role of journalism.

Why India Should Embrace the Right to Be Forgotten:

• Control Over Personal Information: In the digital age, individuals should have the right to manage their personal information and identity. Governments and private entities can severely infringe on privacy by tracking and recording online activities.
• Addressing Consent Issues: Many instances of personal information, such as intimate photos or private details, are shared online without consent. The Right to Be Forgotten addresses this issue by allowing individuals to remove such content from public access.
• Mitigating Digital Damage: The presence of outdated or incorrect information can have long-term negative effects on an individual’s life, including their personal relationships and professional opportunities. This right helps mitigate such harms by allowing for the removal of irrelevant data.
• Right to Privacy: There is no inherent right to access private information that has been unlawfully made public. The Right to Be Forgotten ensures that individuals are not forced to live with the consequences of unlawfully disclosed personal information.

Conclusion and Way Forward:

• Legislative Framework: Enacting a comprehensive data protection law with provisions for the Right to Be Forgotten is essential. Clear criteria for data erasure and the establishment of an independent data protection authority are necessary to ensure consistent and impartial decisions.
• Preventing Overreach: The Right to Be Forgotten should be clearly defined, with limitations and oversight mechanisms in place to prevent misuse. Judicial guidelines must balance privacy with public interest, considering factors like the nature of the information, public interest, and the time elapsed since publication.
• Industry Self-Regulation: Encouraging self-regulation within industries can foster responsible data handling practices. Investing in research and development can help address technical challenges related to data deletion and anonymization.
• Public Awareness: Raising public awareness about data privacy rights and responsibilities is crucial. A culture of responsible online behavior should be promoted to support the right to be forgotten.
• Future Legislation: As the Right to Be Forgotten continues to gain importance in legal and technical domains, it is clear that future legislation will play a critical role in providing a clearer framework for its recognition and implementation in India.