1. What is the “Right to be Forgotten” in the Indian context?
The “Right to be Forgotten” in India is an evolving legal concept, considered an inherent aspect of the broader “Right to Privacy,” which itself is a fundamental right under Article 21 of the Indian Constitution. It allows individuals to request the removal or de-listing of personal information from public platforms, particularly online, when that information is no longer necessary, relevant, or serves a legitimate public interest. While not yet explicitly enshrined in a dedicated statute as an absolute right, Indian courts have recognized and applied this right in various cases, especially to protect individuals from the permanent negative impact of past events, such as acquittals in criminal cases or highly sensitive personal information.
2. How has the “Right to be Forgotten” been addressed in Indian case law?
Indian courts have increasingly recognized and applied the “Right to be Forgotten” through various judgments. Early petitions sought its application, inspired by precedents like Google Spain SL. Key cases include Zulfiqar Ahman Khan v. Quintillion Businessman Media Pvt. Ltd., where the Delhi High Court granted interim relief to prevent republication of articles that severely prejudiced the plaintiff’s personal and professional life, acknowledging his “Right to privacy,” including the “Right to be forgotten” and “Right to be left alone.” Similarly, Jorawer Singh Mundy @ Jorawar Singh Mundy v. UOFS saw interim protection granted to a petitioner acquitted of charges, directing search engines to remove the judgment from their results. The ABC v. State case further emphasized that individuals cleared of guilt should not be “haunted by the remnants of such accusations,” leading to the masking of names in court records. While the Orissa High Court noted the absence of a specific statute, it recognized its alignment with the right to privacy.
3. What is the scope and limitations of the “Right to be Forgotten”?
The scope of the “Right to be Forgotten” is not absolute. As expounded by Sanjay Kishan Kaul J in KS Puttaswamy’s case, it means an individual can control their personal data and existence on the internet, but it does not allow a criminal to obliterate their past entirely. The right is balanced against other fundamental rights, such as freedom of speech and expression and the public’s right to information. It applies when information is no longer necessary, relevant, or correct, and serves no legitimate interest. It cannot be exercised where the information is essential for freedom of expression, legal obligations, public interest (e.g., public health, research), or for establishing legal claims. The internet’s permanence makes “forgetting a struggle,” highlighting the need for this right to allow individuals to “reinvent themselves and reform and correct their mistakes,” especially for children’s online footprints.
4. How does the digital age impact the “Right to be Forgotten”?
The digital age profoundly impacts the “Right to be Forgotten” by making information permanent and widely accessible. Unlike the pre-digital era where mistakes might fade from public memory, information posted online persists indefinitely. This permanence means “humans forget, but the internet does not forget and does not let humans forget.” This creates challenges for individuals seeking to move past past errors, as “footprints remain,” hindering their ability to “begin life again giving up past mistakes.” The continuous creation of “perpetual digital footprints” by children further underscores the need for special protection, as their “childish mistakes and naivety” should not define their entire lives.
5. What statutory developments have occurred regarding the “Right to be Forgotten” in India?
Statutory developments concerning the “Right to be Forgotten” in India have been a “roller-coaster.” The Personal Data Protection Bill, 2018, introduced Section 27, explicitly outlining the right to restrict or prevent disclosure of personal data under specific conditions, subject to an Adjudicating Officer’s determination and balancing with freedom of speech and information. This was followed by the Personal Data Protection Bill, 2019, which refined Section 20, maintaining similar provisions for enforcement through an Adjudicating Officer. The Data Protection Bill, 2021, further extended the scope to “continuing processing” of data. However, the Digital Personal Data Bill 2022 notably omitted explicit mention of the “right to be forgotten,” confining itself to a “right to correction and erasure of personal data.” This non-inclusion was seen as a “statutory backtracking,” as previous drafts consistently treated both “right to erasure” and “right to be forgotten” as enforceable rights.
6. What is the current statutory status of the “Right to be Forgotten” in India?
The current statutory status of the “Right to be Forgotten” in India is somewhat ambiguous due to recent legislative changes. The Digital Personal Data Bill 2022, and subsequently the Digital Personal Data Protection Act, 2023, do not explicitly articulate a standalone “right to be forgotten.” Instead, they focus on the “right to correction and erasure of personal data” under Section 13 (and Section 12 in the 2023 Act). While the right to erasure allows individuals to request the deletion of personal data no longer necessary for its original purpose or for legal retention, this is distinct from the broader “right to be forgotten” recognized in earlier drafts, which involved an adjudicating process and balancing of rights. The shift from “adjudication” by an Adjudicating Officer to “grievance redressal” before the Data Protection Board of India also marks a significant departure.
7. How does the “right to correction and erasure” differ from the “right to be forgotten”?
The “right to correction and erasure” primarily focuses on the accuracy and necessity of personal data. It grants data principals the right to correct inaccurate, misleading, or incomplete personal data, update it, and erase it when it’s no longer needed for the specified purpose or if retention isn’t necessary for a legal purpose. In contrast, the “right to be forgotten” (as envisioned in earlier Indian drafts and European regulations) is a broader concept. It implies the ability to restrict or prevent the continuing disclosure of personal data, even if accurate, when its purpose has been served, consent is withdrawn, or its continued presence causes unwarranted prejudice to an individual’s personal and professional life, and the individual’s interest in restricting disclosure outweighs other rights like freedom of speech. While erasure is a component, the “right to be forgotten” encompasses a more comprehensive ability to control one’s digital presence and past narrative.
8. What factors are considered when determining whether the “Right to be Forgotten” should be applied?
When determining the applicability of the “Right to be Forgotten,” particularly in the context of earlier legislative proposals and judicial considerations, several factors are taken into account. These include:
- The sensitivity of the personal data: Highly sensitive information is more likely to warrant protection.
- The scale of disclosure and accessibility: How widely the information has been disseminated and how easily it can be accessed.
- The role of the data principal in public life: Public figures may have a lower expectation of privacy compared to private citizens, as their information might be of greater public interest.
- The relevance of the personal data to the public: Whether the information serves a legitimate public interest or merely personal curiosity.
- The nature of the disclosure and activities of the data fiduciary: This considers how the data holder systematically facilitates access to personal data and whether restricting disclosure would significantly impede their activities.
- Balancing with other fundamental rights: The individual’s right to privacy and to be forgotten is balanced against other rights like freedom of speech and expression and the right to information. This ensures that the right is not absolute and does not lead to the complete obliteration of public records where legitimate public interest exists.