There has long been a debate between individual interests and societal interests throughout human history. While philosophers have often described humans as social animals, the evolution of laws and rights has gradually shifted focus toward individuality. The clearest modern reflection of this is the global emphasis on human rights. As we increasingly view issues through an individual lens rather than a purely social one, the need to balance both perspectives remains essential for a peaceful and just society. In today’s era of digitalization, where our lives are indexed, searched, and stored online, the boundary between what is personal and what is public has become increasingly blurred. As a result, the right to control one’s personal information has become more vital than ever, giving rise to a relatively new concept: the ‘Right to be Forgotten’ (hereinafter referred to as “RTBF”).
Right to be Forgotten (also called Right to Erasure): The RTBF gives individuals the right to have their private information removed from internet websites or any other public platforms under special circumstances.
The origin of this right can be traced back to French jurisprudence on the concept of “right to oblivion” or “droit à l'oubli” in 2010. This right primarily aimed to protect former convicts who had served their sentences by removing public references to their criminal past. A significant turning point came in 1998, when Mario Costeja, a Spanish citizen, faced reputational damage after a property auction notice, related to his financial difficulties, remained accessible online long after his situation had improved. Disturbed by the lingering presence of the outdated information, he approached the courts. His case ultimately laid the groundwork for the development of the RTBF.
The European Court of Justice ruled against the search engine giant Google, holding that, under certain circumstances, individuals in the European Union could request removal of personal information from search engine results and public record databases.
If we trace the global recognition of the RTBF, the EU introduced the RTBF in the year 2014 and the legislation as part of the General Data Protection Regulation (GDPR). The GDPR also specifies grounds on which a request for erasure may be denied, such as, exercising freedom of speech and expression, tasks of public interest, or exercising the official authority of the organization. In the US, such laws, which pertain to RTBF, would violate the ‘First Amendment.’ This is because, in the case of Florida Star v. BJF (1989), the US Supreme Court held that the First Amendment’s protection of free press prevents any law that would ban publication of truthful facts, as long as the information is legally obtained.
India’s legal position on RTBF has not been very explicit. However, in the landmark case of KS Puttaswamy v. Union of India (2017), the Supreme Court recognized the ‘RTBF’ as part of the Right to Life under Article 21 of the constitution. The court acknowledged this right but clarified that it should not be absolute and outlined where this right may not apply, such as for public interest, public health, archiving, research, etc. The court held 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 purpose. The issue of manipulation of an individual’s information is seen in the case of Jorawar Singh Mundi v. Union of India; the honourable court held this vide judgement and directed the respondents (Google, Lex.in, and Indian Kanoon) to remove the judgment till further order.
Hence, by the above-stated judgments, one thing that can be clearly observed is the need for the ‘RTBF’ as a fundamental right, as in the absence of a data protection regulation, an individual’s fundamental right to delete useless and defamatory private data is being violated. Nevertheless, in the wake of changing dimensions and recommendations or judgments of different courts in different cases, there has been a significant evolution of this right in India. There have also been certain legislative steps taken in that direction. For instance, section 43A, Information Technology Act, 2000, as per this law, organizations, that possess sensitive personal data and fail to maintain appropriate security to safeguard such data, resulting in wrongful loss or wrongful gain to anybody, may be obligated to pay damages to the affected person. Also, section 12, Digital Personal Data Protection Act, 2023, this act of the parliament is yet to be enforced by the government of India, but it contains certain provisions which implicitly provides for the ‘RTBF.’ The Section 12 of this act provides that the Data Principal shall have the right to erase his/her personal data upon withdrawal of consent or once the purpose is no longer served. Data fiduciaries must not retain data beyond the necessary period and must erase it unless legally required to retain.
There are also significant challenges in implementing this right. Like the challenge to journalism, media is widely regarded as the fourth pillar of democracy, and it must be granted sufficient freedom to function without undue restriction. However, if RTBF is broadly enforced, it could become a major obstacle to journalism. Reporters may be compelled to seek approval before publishing historical information about individuals, such as prior convictions or official records, even when such data is relevant to the public. This may lead to the concealment of facts that serve a larger public interest. As noted earlier, the U.S. Supreme Court has rejected a broad formulation of RTBF on similar grounds. Also, conflict with Article 19, as Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression, a foundational right that protects not only personal opinion but also the right to access information. A fully legalized RTBF regime could interfere with this right, as individuals or entities may demand the removal of data that others have a constitutional right to publish or retain. A significant concern with RTBF is its potential to interfere with the public’s right to information, especially regarding criminal records, public figures, or financial frauds. If misapplied, RTBF could allow individuals or institutions to shield legitimate scrutiny, undermining transparency and accountability. Its difficulties in enforcement are also one of the most practical challenges that lie on its way. Once personal data is published online, it often becomes replicated across multiple platforms, making complete erasure nearly impossible. Ensuring total deletion of such information would be technologically complex and legally burdensome.
After all the discussions above, it can be stated that the RTBF is an evolving right in India. Although it may overlap with other fundamental rights, particularly freedom of expression and the right to information, it remains highly relevant in today’s digital age. People do not always have good phases in life; mistakes are made, allegations arise, and reputations suffer. Even after acquittal, individuals often continue to face social stigma. In such cases, RTBF can serve as a safeguard for restoring dignity and reintegration. However, its implementation must be balanced carefully against other constitutional rights and public interests. As discussed earlier, unchecked use of RTBF may allow the State or individuals to conceal vital information from the public, which could weaken democratic transparency. Therefore, India must move towards enforcing RTBF, but only with appropriate checks and safeguards, ensuring that it does not come at the cost of other essential rights.
— Saurabh Srivastava