The Right to Be Forgotten: Striking a Balance Between Privacy and Public Interest

Introduction

The digital age has ushered in an era of unprecedented access to information. While this offers undeniable benefits, it also raises concerns about the persistence of personal data online. In this context, the "right to be forgotten" emerges as a crucial concept in the ongoing debate between individual privacy and public interest.

The right to be forgotten allows individuals to request the removal of their personal information from search engines and other online platforms. This right is particularly relevant for information that is outdated, irrelevant, or no longer serves a legitimate purpose. Imagine a past juvenile offense, a personal bankruptcy long resolved, or unflattering photos from your teenage years – all readily accessible with a few keystrokes. The right to be forgotten empowers individuals to control their online narrative and move forward from past mistakes or experiences.

Understanding the Right to Be Forgotten

The ‘right to be forgotten’ is the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant.

The first known instance where Right to Be Forgotten was used was in 2014. In Spain, a man asked Google to remove links to an old newspaper article which spoke about his previous bankruptcy. Since his debts were paid in full there was little relevancy of that article being online.

As a result, the European Court of Justice ruled against Google and declared that under certain circumstances a European Union citizen could have his personal information removed from the public database. Of course this ruling does not apply outside the borders of the EU.

Right to be forgotten is different from right to privacy. Right to privacy deals with information that is not there in the public domain while right to be forgotten deals with publicly known information and preventing third parties from accessing that information.

Limitations of application in a jurisdiction include the inability to require removal of information held by companies outside the jurisdiction.

What is 'right to be forgotten' under the Indian scheme?

The draft Personal Data Protection Bill 2018 by the Justice BN Srikrishna Committee has included a new right called the right to be forgotten. This right pertains to an individual's capacity to restrict, delink, erase, or rectify the disclosure of their misleading, embarrassing, or irrelevant personal information on the internet.
In accordance with Section 27 of the Bill, in cases where data disclosure is deemed unnecessary, consent to use data has been revoked, or data is being used in violation of legal provisions, the data principal is entitled to stop the data fiduciary from using such data or information.
Moreover, section 27(2) stipulates that the Data Protection Authority, acting as the adjudicating authority, may determine the facts surrounding the disclosure decision and th citizen’s right to information.

Right to be forgotten is in sync with the right to privacy, which was hailed by the Supreme court as an integral part of Article 21 (right to life) of the constitution in Puttaswamy judgement 2017.

What are the issues with India's scheme of 'right to be forgotten'?

• Right to be forgotten gets in conflict with the right to information.
  • This can be depicted in the cases where a rape victim has a right that her past is forgotten and at the same time a criminal cannot claim that he has the right to insist that his conviction should not be referred to by the media.
• Whether the data online has to be retained (right to information) or erased (right to be forgotten) from the web, the decision has to be taken by the Data Protection Authority.
  • This may turn the right to be forgotten into danger to press freedom as a journalist has to wait for the decision of the adjudicating officer.
  • Thus, the freedom to criticise the public personalities for their public policies based on their past statements and activities will be in jeopardy.
• Also, a citizen seeking access to such information will be confused, whether to approach the Central Information Commission or Data Protection Authority.
• The state retains unbridled powers to collect and process data, without the need for consent, for the national interest.
  • However, the national interest is nowhere defined, which allows the application of the right to be forgotten under the discretion of the government.

Balancing Privacy with Public Interest

However, the right to be forgotten is not without its challenges. It must be balanced against the public's right to access information. For instance, historical records or newsworthy events should generally remain accessible.

Some factors to consider when striking this balance:

• The nature of the information: Highly personal information or demonstrably false claims are more likely to be delisted than information relevant to public figures or historical events.
• The age of the information: Information that is outdated or no longer relevant may be delisted, while recent information might be deemed more newsworthy.
• Public interest: Information that serves a legitimate public interest, such as exposing wrongdoing, may be exempt from delisting requests.

Potential Solutions and the Future

• Global Standards: International cooperation and the development of common legal frameworks for the right to be forgotten could address enforcement issues and create a more consistent approach.
• Transparency and User Control: Search engines and online platforms can play a role by providing clear guidelines and user-friendly tools for individuals to request delisting of personal information.
• Right to Reply: In some cases, offering individuals the "right to reply" alongside potentially damaging information could be a solution. This allows them to present their side of the story and provide context.

Challenges and Criticisms

• Scope and Enforcement: The right to be forgotten is currently not a universal concept. While the GDPR sets a strong precedent, its application is limited to the EU. Furthermore, enforcing the right can be difficult, especially when dealing with global search engines and online platforms.
• Censorship Concerns: Critics argue that the right to be forgotten could pave the way for censorship and the manipulation of historical records. Finding a way to protect privacy without erasing the past is crucial.
• Technical Difficulties: Delisting information entirely from the internet can be technically challenging. Search engines may need to develop methods to indicate delisted results or ensure information isn't simply mirrored on other platforms.

Conclusion:

The Right to be Forgotten presents a crucial challenge safeguarding individual privacy in the digital age without compromising the public's right to information. Striking this balance requires ongoing dialogue and nuanced solutions. Clear frameworks can empower individuals to manage their online presence while ensuring historical records and journalistic endeavors remain accessible. Ultimately, fostering a culture of responsible data collection and transparency will be key in navigating this complex digital landscape.

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Article Compiled by:-

Prerna Yadav

(LegalMantra.net Team)

Disclaimer: Every effort has been made to avoid errors or omissions in this material in spite of this, errors may creep in. Any mistake, error or discrepancy noted may be brought to our notice which shall be taken care of in the next edition In no event the author shall be liable for any direct indirect, special or incidental damage resulting from or arising out of or in connection with the use of this information Many sources have been considered including Newspapers, Journals, Bare Acts, Case Materials , Charted Secretary, Research Papers etc.