Right to be forgotten: A new constitutional challenge?
Author: Nishtha Mittal (4th-year student)
Amity law school Delhi is affiliated with GGSIPU
Being able to forget something is human psychology but the ability to remember everything indefinitely is a quality of the internet. Some status updates, pictures and other media related to one’s personal life is written in indelible ink. No matter how much we try to remove it, it still exists somewhere in far corners of the internet, bringing itself to light at the worst possible time.
Fundamental rights enshrined in part III of our constitution lay a firm base for enforcement of those rights of the citizens and to some extent even the non-citizens that cannot be infringed by any authority. These rights lay the foundation of the supremacy of the constitution that was intended by our forefathers while drafting the world’s largest and lengthiest document. These rights have greater significance over other constitutional rights. But what if two of these rights collide? What will be the approach of the apex court that has been bestowed upon, the opportunity to interpret and protect these fundamental rights? What is being referred to by the researcher is that ‘Right to be forgotten’ that has implicitly taken its place in the constitution under one of the fundamental rights enshrined in Article 21 but is said to conflict with the other fundamental right under Article-19. What is the basis of this conflict?
Although there have been attempts to strike a balance between the two rights as none of them can be abridged, it has been concluded to be a rather complex and time taking procedure. The researcher will now proceed to analyze the constitutional challenge behind the incorporation of this right by discussing its conflict with Article 19.
KEYWORDS- Fundamental rights, right to be forgotten, constitutional rights, constitutional challenge, Article 19, Article 21, conflict, constitution.
The research methodology applied in the paper is ‘Doctrinal research methodology’ that includes analysis of various legal journals, research papers by academicians, newspaper editorials, and certain scholarly articles. The research has also been conducted with the help of online books, periodicals, case comments, and references from the site of Google scholar to search for articles within the ambit of this topic.
The issues dealt with in this paper that the researcher will conclude in the last section of this paper after analysis are-
- How did Right to be forgotten came to existence?
- Relationship between right to privacy and right to be forgotten?
- Whether right to be forgotten collides with freedom of speech and expression?
- What is the basis of this conflict?
- How does the conflict affects the constitutional position of the right to be forgotten?
- How can both the rights be balanced by judicial interpretation?
In this digital age, when all the information related to a person whether true or false spreads like fire across social media and other electronic platforms, it is difficult not to be held accountable for something that happened a long time back. Once the matter is up there, it is not plausible for any person to remain immune from the opinions or misinterpreted judgments of the spectators that lead to slander or worse loss of life due to harassment. Since electronic media is the new normal, regulation of these platforms closely is the need of the hour.
This right is based on a principle that no person shall suffer for something he uploaded or something about him that was uploaded on these platforms indefinitely and be judged on basis of the opinions of his past self. People are entitled to the right to be forgotten that includes taking down any information from social platforms or restricting it from public access at their own whims. It’s against the principles of natural justice to punish someone for such an act especially if it comes from other people trying to defame him, thus the right to be forgotten holds equal importance as other fundamental rights. The real issue arises when this right collides with other fundamental rights. As a coin has two sides, there are both pros and cons of the right in question thus it needs to be regulated by lawmakers of our country.
- Meaning under Indian law–This right can be defined as a power invested in any individual that enables him to ask the organizations whether private or public to take down any information published by such organization in relation to such individual. This includes personal data in the interest of the individuals thereby protecting right to privacy.
- Meaning under European law– As provided under the European union general data protection regulation (GDPR), right to be forgotten can be said to be a right of individuals to ask the websites or organization to take down their personal data. This article thereby imposed obligation on the organizations to remove data as asked and comply with the regulation as soon as possible. Herein, personal data can be defined as information that is in relation to the person who is identified as a natural person by the state or European union.
ORIGIN (A case of European Union)
Initially developed as a legal concept, this right finds in origin in the French law of ‘le Droit a Lublin which means the right of oblivion (may also be called right of erasure). This law, therefore, provides a collection of protection of data and the right to be forgotten
However, proper codification of the term can be traced back to a landmark judgement of European union named Google Spain SL v/s Agencia Española de Protección de Datos & Mario Costeja Gonzalez (herein referred to as Google Spain case). Herein the court of justice of the European Union laid the first-ever foundation of the right stating that the state shall prioritize the privacy of citizens over the free flow of data on e-platforms. This decision by the honorable court now forms a judicial precedent for laws on the right to be forgotten. The dispute, in this case, arose between Mr. Gonzalez and Google along with a Spanish newspaper named la Vanguardia. Mr. Gonzalez filed a case against both of them accusing them of violating his right to privacy and data protection by showcasing his personal data on their search results. Therefore, the court upheld the contention of Mr. Gonzalez and codified the right to be forgotten that is taking down personal information by the organizations that come within the scope of the directives.
Although the directives did not particularly lay down the right, it was implicit in some of its provisions. However, the directives were repealed by a new law of the European Union known as ‘General data protection regulation (GDPR). This bill paved the way to expressly incorporate the right to be forgotten in consonance with data protection. It was enacted in the year 2018 but was introduced and discussed in the year 2012 itself.
The landmark judgment of Google Spain forced the lawmakers of the European Union to recognize the right in a codified manner. Article 17 of the act enshrines the right of erasure which includes the obligation of the controller (or the organization) to take down any personal information as asked by the user in certain cases. These cases include- illegality of the information, User objection, no justified cause for uploading such data, or when the information is not needed for the purpose for which it was collected initially.The conflict between the freedom of speech and the right to be forgotten can be witnessed in debates held during and after this judgment. However, the impact of this ruling can be seen as a result of enactments in various countries though India has still not followed the suit.
POSITION UNDER INDIAN LAW
‘Right to privacy and ‘Right to be forgotten’- The apex court has recently laid down its decision of incorporating ‘Right to privacy’ in article 21 as a part of ‘Right to life in a landmark judgment . While reading the text of the judgment, we can say that right to life forms a part of a fundamental right but the right to be forgotten has only been intercepted as a subset of remain if the right to privacy. It can therefore be said that the right to be forgotten is a subject of judicial interpretation depending on the facts and circumstances of the case. There is no Ratio decided regarding the same in the judgment that held the right to privacy as a part of the right to life and liberty. Despite this, it does not mean that the judgment is a complete waste concerning the right in question but should be seen as the first step towards paving a way to incorporate this right in our constitution judiciously.
Some judicial precedents serve as a birthstone of this right in Indian law. These judgments help us understand the nature and scope of application of ‘Right to be forgotten’ which are as follows:
- Dharamraj Bhanushankar Dave v. State of Gujarat & Ors.– Gujarat High court for the first came across the application of right to be forgotten in a case where the petitioner sought taking down of details related to court proceedings vide writ jurisdiction. The respondent was accused by the petitioner of violating article 21 by invading in personal and professional life of petitioner by publishing court proceedings and judgement where petitioner was accused of murder on the internet. However the court did not rule in favor of the petitioner as he failed to establish the case with in the scope of Article 21. It was held that the proceedings of the court can be given to any party via certified copies issued by registrar thus there is no such violation of the right as claimed.
- Sri Vasunathan v. The Registrar General & Ors.– Karnataka High court for the first time recognized the right to be forgotten in this judgement decided in 2017, two years after the judgement delivered by Gujarat High court. The court held that the petitioner had a right to be forgotten in this case as such right can be exercised if there is a serious situation where Modesty of a woman is involved, including rape cases or other situations harming reputation of any person. Here, the petitioner filed an application in the court for removal of his daughter’s name from the order that was held by the respondent in electronic form related to a previous case. It was alleged to contain personal identification details of petitioner’s daughter that would in turn affect her reputation and her marital life. Karnataka High court however pointed out that the judgement is delivered within the lines of rulings of western countries and is also restricted in its application. This right cannot be exercised in cases where certified copy of order contains such details.
- Justice K.S. Puttuswamy (Retd.) & Anr. v. Union of India (Right to privacy judgement)- The landmark judgement related to the right to privacy laid down an implicit foundation of right to be forgotten as remains of right to privacy. Honorable court held that under Article 21 a person shall have right over his personal data in pursuance of right to privacy. But this right over data shall extend to uploading or taking down such data from the internet to protect one’s reputation too. Reading into the judgement, we can conclude that the right of privacy includes right to be forgotten though not expressly mentioned in the provision. However the court restricted the right to take down such data in cases of violation of Article 19 or if such data is needed for research purposes and in interest of general public.
- Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. And Ors.– This was in reference to an injunction order sought by the plaintiff against defendant and others for publication of the articles dated 12th and 31st October by the defendants. This was based on allegations made by someone on the plaintiff in pursuance to me-too movement that were not proven then. The plaintiff suffered a lot of reputation sabotage and torture regarding this. The high court held in favor of the plaintiff passing an injunction order against publication of any articles by any other person related to the me-too movement. It also directed the defendant to take down alleged articles as it violates right to be forgotten of the plaintiff that is in turn subset of right to privacy. It also said that right to privacy includes right to be left alone in case the allegations are regarding sensitive matter especially in this case where the accusations were not even proven to be true.
- Subhranshu Rout @ Gugul vs State Of Odisha– The judgement gave a new light to the right by viewing it as a remedial provision for sexual harassment victims. The court looked at the international situation of the right recognizing its importance in Indian context. While looking at an application of bail, court refused the bail to the applicant stating that leaking private pictures of a woman online, harming her reputation, in an attempt to coerce her to marry or form any kind of relationship with him is a sensitive matter. Such information once leaked before public, can’t be taken back wholly as ruin has been done. Thus right to be forgotten is needed in our country for protection of such victims.
RIGHT UNDER PDP BILL
Justice B.N Krishna’s committee had introduced the ‘personal data protection bill’ in 2018 enshrining the right to be forgotten in section 27 of the act after the privacy judgment whose provisions are in sync with its European counterpart. The said section states that any individual has a right to order the organization to take down any personal data related to such individual if the purpose for which it was collected has been fulfilled and such organization is still holding on to the data without the consent of the individual. It gives adjudicatory powers to the officer of data protection authority to decide upon such cases.
However, the power of deciding how the application shall be made to such authority rests with the government. Such application may be considered because of whether it shall be prioritized over article 19 or not. Also, the power to review the application is provided in subsection (5) of the act. Section 28 clause (2) also provides for fees to be given by the applicant to the authority for the removal of his data from the internet. This provision is restricted in its ambit thus gives limited application to the right, unlike the European bill. As a result, several conflicts arose regarding the implementation of this right against Article 19 as discussed in a later section of the paper.
The right in question came to light as a result of the above-mentioned regulations that is ‘general data protection regulations of the European Union. This regulation paved a way for the insertion of this right in Indian statutes thus the personal data protection bill was enacted. Both of the above laws seat the right to be forgotten in their provisions. However, after examining them, we can see that the scope of the right in the GDPR is much larger than that in the PDP bill in the ways that Article 17 of GDPR allows total erasure of the data in question upon application to the data controller by data principle. This includes erasure of past data and further restraint on the publication of new data. But Section 27 of the PDP bill only allows the principle to avail restraint in case of continuing publication and not the removal of whole data altogether. If the principle were to avail total erasure, there are stringent terms and conditions he is required to fulfill as mentioned in the above section of the paper.
Also, under the GDPR, the principle approaches the data controller directly without the meddling of any authority. It’s only after the refusal of such controller, that the principle approaches authorities to avail remedies. But under the PDP bill, there is no direct interaction between the principal and the controller, rather it is a long process where the principal obtains the assent of the authorities through application who have the power to decide whether the data shall be taken down or not. Additionally, Article 85 of GDPR requires the balance of right of speech and right to be forgotten in any case including the purpose of journalism. Whereas section 74 of the PDP bill exempts the journalist’s organization or individuals to be held under the obligation to remove data when asked by the data principle. Thus it forms and exception to the right given in section 27 of the bill. Thus being similar in objective, both the laws are far apart in terms of scope which in turn reflects the sincerity of incorporation of this right.
CONFLICT WITH ARTICLE 19 (the constitutional challenge)
The most vital role of the right to be forgotten is that the people of the country can preserve their personal information from going public at the instance of some other personnel. But this right gives birth to a major conflict with the freedom of speech and expression incorporated in our constitution as one of the fundamental rights enshrined in part III. While the right to be forgotten enhances the removal of information from a public platform, the freedom of speech and expression includes ‘Right to information which in contradiction enables the free flow of information.
Such conflict is inevitable, the real issue before the judiciary is which right shall supersede the other one in case dispute arises during judicial interpretation of the two. What is worth noting here is that none of the rights are absolute in nature. Freedom of speech and expression is also restricted by provisions of Article 19(2) that the state can make any law that does not align with Article 19(1)(a) in certain cases like public interest, protection of state sovereignty, etc.  However the reasonable restriction provided in the article is an exhaustive but loosely drafted provision. In no way we can conclude that such restrictions contain the provisions for the right to be forgotten. Even in the case of the European Union, while drafting GDPR many scholars opposed the incorporation of this right giving the reasons that it violates free speech and is thus equivalent to censorship.
STRIKING BALANCE BETWEEN THE RIGHTS
Both of these rights need to be balanced for implementation as none being absolute, can override the other. The issue here is not balancing the two, but how to balance them. Which right shall supersede the other and why? We shall try to come up with some solutions and recommendations in this section based on the scholarly comments especially in the light of ways adopted by the European Union.
- Incorporation of restriction in Article 19- Generally, the cause of conflict between two provisions is because of loosely drafted laws. The golden triangle forming the foundation of the law of our country must be drafted so strictly so as to avoid any such future conflicts. The restrictions given in article 19 must include ‘right to be forgotten’ as a ground in special circumstances. Where the provisions leave a gap, it leaves an air bubble of doubts. However such incorporation shall not be interpreted as full take over by the right to be forgotten over freedom of speech and information. The restrictive nature of the term ‘special circumstances’ must be adhered to.
- Amendments in PDP bill- Section 27 of the bill must be altered to specify the situations where the right to be forgotten may apply. This right can have a counter effect if not amended such as misuse by higher authorities in removing data that reveals their misdeeds. However if abrogated altogether, it can be a loss of a remedy to sexual crimes victims hampering their image or to reformed criminals trying to forget their past after serving its cost.
- Harmonious construction- A compromise from both the ends is the way forward to inculcate both the rights in proper way. Since each can serve as a remedy to a victim, it can also become a free pass to an offender. Thus loose interpretation of any of these articles would eventually lead to a legal blunder. Limiting both the rights by an authorized legal authority thereby conserving their fundamental nature is the need of an hour. It has also been upheld in suggestions laid down by the European court or justice in a case while attempting to strike a balance between freedom of expression and right of erasure.
- Lay down some tests- Nature of information in question must be examined carefully by the authorities. If private in nature, it should be allowed to be taken down after the applicant has proved that such information was not intended by him to be released in public and it is harming his current as well as future prospects. Public interest (that contains information about public figures in interest of general population) must be taken into consideration while determining whether an information shall stay accessible to the public or not. This will help the interpreters to differentiate between information in public interest and other sensitive information related to one’s personal life
- Power given to parties- some powers including the right to challenge the application for erasure of certain information must be available in the PDP bill in order to conserve the freedom of speech. This includes fiduciaries proving that the data principle did not initially had a problem regarding publication of the information in question giving reference to a previous conduct. Howsoever, they must be able to prove that their actions were in good faith and do not violate the privacy of the data principle. Similarly some powers need to be given to data principle as well that may include defending his application by establishing that their was no intention on the part of data principle for such information to be leaked in any manner whatsoever. This will fulfill the requirements of natural justice principle giving each party the Audi altem partem and aid judiciary in determining the disputes.
Based on the journey gone through by the researcher, we can conclude that every coin has two sides to it. Similarly, every right can be a savior if used judiciously or a bane if mishandled. As we can see there is no express protection of the right to be forgotten except the loosely drafted PDP bill, it leaves a scope of misinterpretation favoring the freedom of speech and expression over this right. Both the rights must be on the same pedestal to be balanced equitably. Thus one of the conclusions of this research is that the right needs to be properly accommodated in article 21 of the constitution and not only through judicial precedents.
The unavailability of such a provision in our constitution would allow the evil minds to use the right as an escape route availing the benefit of gaps left in the PDP bill.
This incorporation poses a challenge to the constitution as it gives rise to the conflict with its other fundamental right as discussed above. Not only the right to be forgotten but also its parent right, the right to privacy faced similar controversy with the right to information. But the conflict soon came to an end as soon as the privacy judgment led to constitutional recognition of the right. A similar solution can be suggested for the right in question.
The researcher applauds the judicial pronouncements tracing the path to justice by delivering such extraordinary judgments about this right by emphasizing its need to protect sensitive victims from media harassment. This is in a way restrictive application of the right without harming freedom of speech and expression. PDP bill also protects the journalists from the scope of application of the right to be forgotten which in turn is the fourth pillar of Indian democracy. Free reporting is necessary for a great democracy to work especially the most complex one like ours, but indiscriminate journalism has become a trend nowadays. Journalism is a live example of free speech thus should not be abrogated completely but should exercise some restrictions in special cases recognizing the right of erasure. Where on one hand it can expose any public figure or government schemes detrimental to the public interest or health, it can cause trauma to any victim who wishes to forget any past incident that changed their life completely.
The right to be forgotten shall prove to be a great enhancement in our constitution in furtherance of the right to privacy, but currently, it lacks proper legal direction and implementation. The issue with judicial precedents is that one can contradict the other any day (referring to judgments discussed in previous sections) thus cause a great deal of confusion unless a proper enactment with restrictions is enacted by the legislators.
Finally, the researcher would like to conclude the paper by stating the answers to the research questions for which this research was conducted. As we have seen, the right to be forgotten came into existence with the Google Spain case of the European Union and found its way to the GDPR that proved to be the first enactment to recognize the right. Indian judicial precedents mentioned above further took reference of this right from the European union thus leading to the enactment of the PDP bill 2018. The basis and solution to the conflict between the right and Article 19 have been discussed above in detail. Although it’s a long way to constitutional recognition of this right, it rightly poses a challenge to the constitution and its fundamental freedoms. As they say, no stagnant law can be progressive thus our constitution also needs to keep evolving accommodating new laws including the amendments to the existing ones to suit the needs of our ever-growing society.
 INDIA CONST. art.21. Right to life and liberty.
 INDIA CONST. art.19. Freedom of speech and expression.
 Natural justice is a sense of what is wrong and what is right.”
 Om Marathe, Right to be forgotten, THE INDIAN EXPRESS (Oct. 1st, 2019, 8:04:42 am), https://indianexpress.com/article/explained/explained-the-right-to-be-forgotten-on-the-internet-6041283/.
 Recitals 65 and 66 and in Article 17 of GDPR.
 Article 2 of GDPR 2018.
 Art. 26 of Loi Informatique et Liberté.
 Google Spain SL v. Agencia Española de Protección de Datos, C-131/12, (May 13, 2014).
 Kunal Garg, Right to be Forgotten in India: A Hustle over Protecting Personal Data Protection Bill, 2018, ILJ.
 Directive 95/46/EC (European data protection law).
 A combined reading of articles 12(b) and 6(1)(e).
 Google Spain, 2014 E.C.R. 317.
 Nikhil Aswani, the right to be forgotten and its enforcement in India, VOLUME 6 ISSUE 3 – ISSN 2454-1273, IJLDAS, 111 (2020).
 Supra note 10, at 3.
 Right to be forgotten.
 Article 17 GDPR 2018.
 Alok Prasanna, Right to be forgotten in Indian Law, 3 no. 11, EPW, 10 (2017).
 Supra note 2, at 1.
 Justice K.S. Puttuswamy (Retd.) & Anr. V. Union of India & Ors., (2017) 10 SCC 1.
 Nikhil Aswani, the right to be forgotten and its enforcement in India, VOLUME 6 ISSUE 3 – ISSN 2454-1273, IJLDAS, 112 (2020).
 Special Civil Application Number 1854 of 2015, Decided on 19.01.2017.
 INDIA CONST. art. 226.
 Supra note 2, at 1.
 Writ Petition Number 62038 of 2016 (GM-RES), Decided on January 23, 2017.
 Supra note 25, at 5.
 Supra note 3, at 1.
 Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132, 2019 (175) DRJ 660.
 BLAPL No.4592 OF 2020.
 Personal data protection bill 2018.
 GDPR 2018.
 Data principal- the person, company, or entity whose information is being collected.
 Data fiduciary- a person, state, company, or any entity that decides why data should be processed and how it should be processed.
 “Data” means information that is represented in a form that is more appropriate for processing.
 Section 27(2) PDP Bill 2018.
 Section 107(2)(a), Personal Data Protection Bill, 2018.
 Supra note 37, at 7.
 Supra note 16, at 4.
 Vinod Joseph and Deeya Ray, India: The Right To Be Forgotten – Under The Personal Data Protection Bill 2018, MONDAQ (Nov. 12, 2019), https://www.mondaq.com/india/privacy-protection/860598/the-right-to-be-forgotten–under-the-personal-data-protection-bill-2018.
 Article 17 GDPR.
 Article 58 cl. (2) GDPR.
 Supra note 42, at 7.
 Supra note 46, at 8.
 INDIAN CONST. art. 19 cl. (1)(a).
 INDIA CONST. art. 19 cl. 2.
 Supra note 26, at 5.
 Jeffrey Rosen, The Right to Be Forgotten, 64 STAN. L. REV. ONLINE 88, 88 (2012).
 Article 14, 19, 21 on INDIAN CONST.
 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy, C-73/07, pg. 55–56.
 High Court of South Africa, Tshabalala-Msimang & Another v Makhanya and Others (18656/07)  ZAGPHC 161 (30 August 2007).
 European Court, Von Hannover no. 2 v Germany, App. Nos. 40660/08 and 60641/08 [GC], 7 February 2012, para 110.
 ARTICLE 19, Defining Defamation: Principles on Freedom of Expression & Protection of Reputation, July 2000.
 Mutatis mutandis, European Court, Axel Springer v Germany, App. No. 39954/08 [GC], 7 February 2012, Para 83.
 Supra note 11, at 4.
 Supra note 16, at 4.