SC to examine acquitted man’s ‘right to be forgotten’: What is the right, and how have courts ruled earlier?
- Last week, the Supreme Court agreed to hear a case whose outcome will likely shape the contours of the “right to be forgotten”, known in European information privacy regulation as the “right to erasure”, in India. The top court now has to decide whether the right to be forgotten is a fundamental right and, if so, how it relates to other fundamental rights guaranteed by the Constitution of India.
- A three-judge Bench headed by Chief Justice of India (CJI) D Y Chandrachud will hear a challenge against a Madras High Court ruling that on February 27 directed legal search portal Indian Kanoon to take down a judgment in a 2014 rape and cheating case.
- The acquitted man had moved the Madras HC in 2021, saying that he had been denied the citizenship of Australia because his name appears in the judgment that is publicly available on the legal portal.
What is the right to be forgotten?
- The right to be forgotten can be loosely described as the right to remove one’s digital footprint (from Internet searches, etc.) where it violates the right to privacy. In May 2014, the Luxembourg-based Court of Justice of the European Union (CJEU), the highest court in matters concerning the application and interpretation of EU law, affirmed that there exists a right to be forgotten.
- Informational self-determination — an individual’s right to control and limit her personal information — is now widely recognised in EU law.
- Article 17 of the EU’s General Data Protection Regulation (GDPR) describes the right to erasure. From victims of so-called “revenge porn” to individuals whose personal cases are on the Internet, the right to be forgotten is a crucial remedy.
How is the right interpreted in India?
- In India, there is no statutory framework that prescribes the right to be forgotten. However, not all constitutional rights need to be written in black and white. Until the 2017 judgment in Justice K S Puttaswamy v Union of India - in which the apex court explicitly recognised the right to privacy as a fundamental right, placing it as a facet of the right to life, right to equality, and the right to freedom of speech and expression - there were also questions on the right to privacy.
- A concurring opinion in the Puttaswamy ruling by Justice S K Kaul mentions the right to be forgotten. Justice Kaul said that this right “does not mean that all aspects of earlier existence are to be obliterated… It would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/ information is no longer necessary, relevant, or is incorrect and serves no legitimate interest”.
- Justice Kaul also gave a list of valid justifications for the right to be forgotten to be violated. These included “exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims”.