Right to be Forgotten is a fundamental right

Right to be forgotten: The Supreme Court’s use of an Oscar Wilde quote to acquit a paedophile has been criticised for misplacing it. It says, “The only difference between the saint and the sinner is that every saint has a past and every sinner has a future.” There is a flip side to it as well. The quote perfectly fits in the “Right to be forgotten” doctrine.

Need for Right to be forgotten

Until the Internet became an indistinguishable part of our lives, people rarely cared about their digital footprints. However, a few years down the line, they come to regret their past, and it is a universal phenomenon. The problem with digital footprint is that its omission is subject to whims and fancies of the big tech and small website owners. One day, Spain decided to do something.

In the 2014 case of Google Spain SL, Google Inc v Agencia Española de Protección de Datos, Mario Costeja González, the National High Court of Spain held a wide-ranging deliberation with the European Court of Justice. At the end, the Right to be Forgotten was considered an integral part of human existence. Google was ordered to remove outdated and derogatory materials related to Costeja González.

The EU has designed the General Data Protection Regulation (GDPR) to solidify this fundamental right. Therefore, Google’s search engine has undergone a plethora of changes in the last few years. Lakhs of solicitations have been given to Google requesting the removal of multiple million FIRs.

Also read: Anvar P.V. vs P.K.Basheer & Ors : The case that let guidelines for the Evidence Act

Evolution of Right to be forgotten in India

India has been a bit late in adopting this framework. When the EU was finalising its guidelines in 2017, Gujarat High Court had refused to recognise the Right to be forgotten in the Dharmaraj Banu Shankar Dave case. However, things changed after that. Indian Courts, especially Courts of record became appreciative of the follies of the Internet and started to grant relief to the victims.

The main catalyst behind this was the Supreme Court’s expansion of Article 21, which provides for Right to Life, and also means Right to life with personal dignity. In K S Puttaswamy Judgement, pronounced in the very year on 24 August, the Court held Right to Privacy as fundamental right.

In the 629th paragraph of the Judgement, the Apex Court expanded “right to be forgotten,” as, “The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the internet.”

Needless to say, this would not be an absolute right. The Court cited that in modern times, only the government is not a threat to people’s privacy. Instead, big corporations and private entities also act as big brothers.

Also read: Jallikattu is legally and morally the right of Tamils

Puttaswamy judgement was a big change

In the 2019 Zulfiqar Ahman case, the Delhi High Court ordered the news portal, ‘The Quint’, to remove articles written against him. The case added a new dimension to the right, which is “Right to be left alone”. In 2020, in Subhranshu Rout case, Odisha High Court held that sexually explicit videos of victims can be removed. Next year, the Apex Court uphold the utility of the anonymity of victims in the Gurmeet Singh case.

However, someone’s right to be forgotten is in direct conflict with people’s Right to information. In Puttaswamy Judgement, the Court said, “The existence of such a right does not imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big, and it cannot be said that a person should be profiled to the nth extent for all and sundry to know.”

Also read: Kumari Chandra v State of Rajasthan: She drowned three kids because she was PMSing and funnily got acquitted

This conflict came to the fore in the Jorawar Singh Mundy case. Due to an online reference to a case in which he was acquitted, Jorawar was not getting jobs in America. The Delhi High Court has granted him relief, but the ball regarding the balance of Article 19 and 21 is left for both the legislature and the judiciary to decide. With the Data Protection bill on the horizon, brace yourself for a new round of purely legal conflict.

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