Author: YASHI SINGH, ARYA KANYA DEGREE COLLEGE, UNIVERSITY OF ALLAHABAD, PRAYAGRAJ
To the Point
In India, a nation grappling with the dual challenges of rapid digital adoption and an evolving privacy jurisprudence, the explicit recognition and robust implementation of RTBF is no longer a luxury but a fundamental legal necessity. This article argues that without a comprehensive statutory framework for RTBF, individuals remain vulnerable to the enduring consequences of their online past, undermining their fundamental right to privacy and the ability to live with dignity in the digital age. This discussion investigates the foundational legal principles surrounding the Right to Be Forgotten in the Indian context. It evaluates early judicial interpretations and offers a detailed analysis of the provisions and implications of the Digital Personal Data Protection Act, 2023.
Use of Legal Jargon
This article will frequently employ legal terminology to provide a precise and in-depth analysis. Readers will encounter terms such as: data principal, data fiduciary, personal data, sensitive personal data, informed consent, data retention, public interest, freedom of speech and expression, defamation, Concepts such as the authority of courts, the principles of natural justice, and doctrines like locus standi, certiorari, mandamus, ex debito justitiae, res judicata, and stare decisis are pivotal in understanding how the Right to Be Forgotten is shaped. These, along with terms like ultra vires, sub judice, prima facie, de novo, ipso facto, ad hoc, inter alia, and sui generis, reflect the deep-rooted legal vocabulary involved in data protection jurisprudence quid pro quo, volenti non fit injuria, damnum sine injuria, injuria sine damno, mens rea, actus reus.
The Proof
The compelling need for the Right to Be Forgotten is underscored by a myriad of real-world scenarios where the lack of such a right inflicts profound and often irreversible harm on individuals. The persistence of information online, regardless of its relevance or accuracy over time, can lead to:
Reputational Impairment and Employment Barriers: Individuals, particularly young professionals, frequently face prejudice in job applications and career advancement due to archaic news articles, past minor criminal infractions (even if acquitted or expunged), or embarrassing social media posts from their youth. A digital footprint that permanently labels them can effectively bar them from opportunities, irrespective of their current qualifications or character.
Re-victimization and Psychological Distress: Victims of heinous crimes, such as sexual assault, often find their identities and traumatic experiences perpetually linked to online search results. The right allows them to reclaim their narrative and move past their victimhood.
Financial Disadvantage and Fraud: Erroneous or outdated financial information, even if rectified offline, can continue to circulate online, leading to credit denials, heightened insurance premiums, or susceptibility to identity theft and fraud.
Erosion of Personal Autonomy and Identity: In an era where digital presence significantly shapes an individual’s identity, the inability to control one’s online narrative undermines personal autonomy. People evolve, learn from past mistakes, and wish to define themselves by their present and future, not solely by a snapshot of their past digital activity. The enduring nature of online data robs them of this fundamental self-determination.
These illustrations unequivocally demonstrate that the absence of a robust RTBF mechanism results in concrete, demonstrable harm, making its legal recognition and effective implementation an urgent imperative for the protection of individual rights in the digital age.
Abstract
This article undertakes a comprehensive analysis of the “Right to Be Forgotten” (RTBF) within the evolving jurisprudential landscape of India.Although there is currently no standalone legislation in India that formally recognizes the Right to Be Forgotten, its theoretical basis is deeply rooted in the constitutional guarantee of the right to privacy under Article 21 of the Indian Constitution and fortified by the landmark judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India. The unprecedented scale of data generation, collection, and retention in the digital era necessitates a delicate equilibrium between an individual’s right to control their personal information and the often-competing constitutional entitlements of freedom of speech and expression, public interest, and the legitimate functions of journalism and public record keeping. This paper meticulously traces the evolution of privacy rights in India, critically examining the relevant provisions within the recently enacted Digital Personal Data Protection Act, 2023, and analyzing the disparate yet progressive judicial pronouncements that have cautiously advanced the practical application of RTBF.Ultimately, the article champions the immediate need for a comprehensive, nuanced statutory framework that for data principals seeking to exercise their Right to Be Forgotten, thereby safeguarding individual dignity and autonomy in an increasingly digitized society.
Case Laws
The judicial landscape in India, though still in its formative stages concerning the explicit recognition of the Right to Be Forgotten, has demonstrated a discernible trend towards acknowledging and enforcing its underlying principles, primarily as an emanation of the fundamental right to privacy. Key judicial pronouncements shaping this discourse include:
In the landmark judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India [(2017) 10 SCC 1], the Supreme Court, through a unanimous decision by a nine-judge Constitution Bench, firmly affirmed that the right to privacy is a fundamental component embedded within Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty .This historic ruling established the constitutional foundation for privacy law in India . While not explicitly defining the “Right to Be Forgotten,” the judgment’s emphasis on “informational self-determination” and an individual’s control over their personal data laid the robust jurisprudential foundation for the eventual recognition of RTBF. Justice Sanjay Kishan Kaul, in his concurring opinion in the Puttaswamy case, highlighted the importance of the “Right to Be Forgotten.” He emphasized that a person’s ability to manage An individual’s ability to control their personal data and determine the scope of their digital footprint is a vital expression of personal freedom and autonomy.. However, he also clarified that this right is not without limitations and must be balanced against other constitutional principles and public interests.to be balanced against other rights, such as freedom of expression and public interest.
Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors., CS (OS) 642/2018 (Delhi High Court, 2019): In this case, the Delhi High Court granted an interim injunction directing the removal of online articles that were found to be defamatory against the plaintiff, who was accused in a #MeToo related case but had since reached a settlement. While the case primarily dealt with defamation, the Court’s willingness to order the removal of online content implicitly touched upon the principles of the “right to be left alone” and the impact of persistent online information on an individual’s reputation, thereby hinting at an embryonic recognition of RTBF.
Subhranshu Rout @ Gugul v. State of Odisha, W.P.(C) No. 15915 of 2020 (Orissa High Court, 2020): This is a landmark High Court judgment where the “Right to Be Forgotten” was explicitly addressed. The petitioner, who had been acquitted in a criminal case, sought the removal of his name and other identifying details from online records and search results related to the judgment. The Odisha High Court, relying on the Puttaswamy judgment, held that the “Right to Be Forgotten” is an intrinsic part of the “Right to Privacy” and directed the removal of the said information, emphasizing the individual’s right to live with dignity and without the perpetual stigma of a past legal proceeding, especially after acquittal. The court emphasized the need for a “broad debate”on the practical and technological challenges of implementing this right.
These judgments, though not always uniform in their approach, collectively illustrate the Indian judiciary’s proactive role in interpreting the constitutional right to privacy to encompass elements of the “Right to Be Forgotten.” They underscore the recognition of its necessity, particularly when personal information, especially concerning past legal proceedings, becomes outdated, irrelevant, or disproportionately harmful, impinging on an individual’s fundamental right to live with dignity.
Conclusion
In today’s increasingly digital world, the Right to Be Forgotten has emerged as a crucial legal safeguard, particularly in the Indian context, where the protection of personal dignity and informational autonomy is becoming ever more important.The proliferation of personal data online and its enduring nature pose significant challenges to individual privacy, reputation, and the ability to live a life free from the perpetual shadow of an inescapable digital past.India’s legal system has taken a significant step forward with the recognition of the right to privacy as a fundamental constitutional guarantee through the Justice K.S. Puttaswamy judgment. This development lays a strong foundation for evolving data protection norms, including the broader acceptance of digital rights like the Right to Be Forgotten. Puttaswamy (Retd.) v. Union of India, and the subsequent enactment of the Digital Personal Data Protection Act, 2023, a comprehensive and explicit statutory recognition of the “Right to Be Forgotten” remains an imperative.
The DPDP Act, while incorporating a “Right to Erasure” (Section 12), does not fully encapsulate the broader implications of RTBF, particularly concerning the de-indexing of information from search engines or the removal of publicly accessible records where the original purpose of processing may have been legitimate but has since ceased to be relevant or necessary. The existing judicial pronouncements, while progressive and indicative of a growing understanding of RTBF, are often ad-hoc and lack uniformity, leading to legal uncertainty and inconsistent application.
The effective implementation of RTBF requires navigating a complex interplay of competing fundamental rights, notably the right to freedom of speech and expression (Article 19(1)(a)), and the public interest in access to information. A well-crafted statutory framework must provide clear, objective criteria for assessing RTBF requests, includingThe sensitivity of the data.
The relevance of the information over time.
As the individual to whom personal data belongs, the data principal exercises control over its usage, ensuring that their privacy rights are maintained. The data principal’s rights—such as giving consent, accessing, correcting, or erasing data—empower citizens to actively participate in digital governance while safeguarding personal autonomy.
The public interest in retaining the information.
The potential harm to the individual versus the benefits of public access.
FAQs
Q1: What does the “Right to Be Forgotten” truly mean in the context of individual privacy in the digital age?
A1: The “Right to Be Forgotten” (RTBF) is an individual’s entitlement to have certain personal information removed from public access, especially from internet search results and online platforms, when that information is no longer relevant, necessary, accurate, or causes undue harm, and where the public interest in retaining it does not outweigh the individual’s right to privacy.
Q2: Is RTBF a fundamental right in India?
A2: While not explicitly enumerated as a standalone fundamental right in the Indian Constitution, the Supreme Court of India, in the landmark Justice K.S. Puttaswamy (Retd.) v. Union of India judgment (2017), recognized the Right to Privacy as a fundamental right under Article 21. Indian High Courts have subsequently interpreted and applied the principles of RTBF as an inherent aspect or an emanation of this fundamental right to privacy.
Q3: In what ways does the Digital Personal Data Protection Act, 2023 provide for or reflect the principles of the Right to Be Forgotten?
A3: The DPDP Act, 2023, includes a “Right to Erasure” (Section 12), which allows a data principal to request the correction, completion, updating, or erasure of their personal data from a data fiduciary. While similar to RTBF, the Right to Erasure primarily focuses on the data fiduciary’s obligation to delete data they hold when the specified purpose is no longer served or consent is withdrawn. RTBF, in its broader sense, extends to de-listing from search engines and removal of publicly accessible information, which may not be fully covered by the current Right to Erasure in the DPDP Act. Jurisdictional Issues: Enforcing RTBF against global internet companies and content hosted outside India’s national jurisdiction.
* Technical Feasibility: The practical difficulties of completely erasing information from the vast and decentralized internet.
* Abuse of Right: Preventing the misuse of RTBF to suppress legitimate criticism, hide criminal records, or rewrite history.
* Ambiguity in Law: The absence of a precise statutory framework leads to inconsistent judicial interpretations and uncertainty for both data principals and data fiduciaries.
Q4: Can I request the removal of court judgments related to me under RTBF?
A4: The application of RTBF to court judgments is a complex and evolving area in India. While some High Courts have ordered the masking or removal of names from judgments, particularly in cases of acquittal, juvenile offenses, or sensitive matters involving victims of sexual crimes, There is ongoing discourse surrounding the idea of open justice, which highlights the need for transparency and accountability in how the judicial system operates.Advocates argue that public access to court proceedings and records is essential for accountability, ensuring public confidence in the legal system. However, this openness sometimes conflicts with privacy rights, especially when sensitive personal information becomes part of the public domain. Balancing openness with individual privacy remains a critical challenge in a digital world where judicial records are often accessible online. Each case is typically evaluated on its specific facts, balancing the individual’s right to dignity and privacy against public interest considerations.
