Supreme Court to Examine Scope of ‘Right to be Forgotten’ (RTBF)

Context

The Supreme Court of India stayed a Delhi High Court judgment that directed the removal and de-indexing of accurate news reports concerning an individual who was later discharged in a money laundering case. The apex court will now determine if the Right to be Forgotten (RTBF) can compel the erasure of factual, public-record-based journalism.

Legal Definitions & Origins

• Right to be Forgotten: A facet of the Right to Privacy, it allows individuals to seek the removal of personal information from the internet that is no longer necessary or relevant.
• Constitutional Basis: In the K.S. Puttaswamy v. Union of India (2017) judgment, the Supreme Court recognized RTBF as part of the Right to Life and Dignity (Article 21)

Core Legal Conflict

The case presents a significant constitutional “balancing act” between two fundamental rights:

Judicial Precedents on the Right to Be Forgotten in India

• Rajagopal vs. State of Tamil Nadu (1994): In this seminal judgment, the Supreme Court articulated the concept of the “right to be let alone” as part of the right to privacy.
  • However, it drew a clear boundary by holding that information forming part of public records, including judicial decisions, can be lawfully published and commented upon, thereby limiting the scope of erasure in such cases.
• Dharamraj Bhanushankar Dave vs. State of Gujarat (2017): The Gujarat High Court declined to order the removal of details relating to an acquittal from publicly available court records.
  • The Court stressed that judicial orders must remain accessible to preserve transparency and the integrity of the justice system.
• Orissa High Court (2020): While addressing a case involving non-consensual dissemination of intimate content, the Orissa High Court acknowledged the relevance of the right to be forgotten.
  • At the same time, it observed that the right raises intricate legal questions and requires deeper deliberation, clearly defined limits, and appropriate remedial mechanisms before its broad implementation.
• Delhi High Court (2021): The Delhi High Court adopted a more expansive interpretation by permitting the removal of certain personal details from online search results in a criminal matter.
  • The Court reasoned that continued digital visibility could adversely affect the petitioner’s dignity, social standing, and career prospects.
• Supreme Court Order (July 2022): The Supreme Court directed its registry to devise a process for masking personal details of parties involved in a sensitive matrimonial dispute from search engine results.
  • This order marked a notable step toward broadening the operational scope of the right to be forgotten in India.
• Kerala High Court (December 2023): The Kerala High Court ruled that the right to be forgotten cannot extend to matters that are sub judice, citing the principles of open justice and public scrutiny.
  • However, the Court acknowledged the evolving nature of the right and noted that its applicability may depend on the facts of each case and the passage of time, while emphasising the need for legislative guidance.
• Himachal Pradesh High Court (July 2024): In a rape case, the High Court directed the anonymisation of both the accused and the victim after acquittal.
  • The Court highlighted that individuals should not continue to suffer reputational harm once judicial proceedings conclude in their favour.

Challenges Arising from Divergent Judicial Approaches

• Absence of Consistency: Varying interpretations by different High Courts have led to uncertainty regarding the scope and enforcement of the right to be forgotten, resulting in uneven legal outcomes.
• Reconciling Privacy with Public Interest: Courts frequently grapple with striking a balance between an individual’s right to privacy and the broader principles of transparency, freedom of expression, and access to justice.
• Status of Public Records: Judgments such as Rajagopal underline the tension between safeguarding personal privacy and maintaining the openness and reliability of judicial records, posing a persistent challenge for courts.
• Legislative Vacuum: The lack of a comprehensive statutory framework has contributed to fragmented judicial responses, underscoring the necessity for legislative intervention to define uniform standards and procedures.
• Risk of Judicial Overreach: Inconsistent rulings may raise concerns about excessive content removal, potentially affecting the completeness and accuracy of digital information and placing undue obligations on private intermediaries.
• Balancing Competing Rights: Courts must harmonise the right to be forgotten with freedom of speech and expression, as well as address conflicts with the Right to Information Act, 2005.
• Technical and Jurisdictional Constraints: Enforcing erasure across digital platforms is complicated by data duplication, cross-border servers, and compliance challenges faced by search engines and intermediaries.
• Implications for Journalism: Overbroad application of the right may constrain journalistic freedom by limiting the ability to report on individuals’ past actions, thereby affecting the media’s democratic role.

Rationale for Adopting the Right to Be Forgotten

• Autonomy Over Personal Data: In an increasingly digital world, individuals should have greater control over how their personal information is stored, shared, and accessed, especially given extensive data collection by both state and private actors.
• Protection Against Non-Consensual Disclosure: Personal information, including intimate images or private details, is often circulated online without consent. The right to be forgotten provides a mechanism to restrict continued access to such content.
• Reducing Long-Term Digital Harm: Outdated, inaccurate, or irrelevant information can have lasting negative consequences on personal relationships and employment prospects. Allowing its removal helps prevent perpetual digital punishment.
• Reinforcing the Right to Privacy: There is no legitimate entitlement to access private information that has been unlawfully disclosed. The right to be forgotten ensures individuals are not forced to endure ongoing harm from such disclosures.

Way Forward

• Comprehensive Legislation: India should enact a robust data protection law that explicitly recognises the right to be forgotten, outlines clear criteria for erasure, and establishes an independent data protection authority with expertise in law, technology, and privacy.
• Safeguards Against Misuse: Clear definitions, limitations, and oversight mechanisms are essential to prevent abuse of the right and ensure it is not used to suppress legitimate public interest information.
• Judicial Guidelines: Courts should develop consistent principles to balance privacy and public interest, taking into account factors such as the nature of the data, its relevance, public interest, and the time elapsed since publication.
• Industry Self-Regulation: Digital platforms should be encouraged to adopt responsible data management practices, including data minimisation, anonymisation, and secure deletion protocols.
• Public Awareness and Digital Literacy: Awareness campaigns can help citizens understand their data protection rights and responsibilities, fostering more ethical and informed online behaviour.

Conclusion

The right to be forgotten is steadily gaining prominence as an essential component of privacy protection in the digital age. In India, its recognition currently rests on judicial interpretation due to the absence of explicit legislation. As data-driven technologies continue to expand, a well-defined statutory framework is crucial to ensure consistent application, protect individual dignity, and balance competing constitutional values.

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