MEDIA LAW AND RIGHT TO BE FORGOTTEN: BALANCING PRIVACY AND PUBLIC INTEREST
https://docs.google.com/document/d/1yG1aJTcZ4M6SfvLtpbNZ0Ro-_WBmmJWU/edit?usp=drivesdk&ouid=104660367143589830670&rtpof=true&sd=true
Introduction
In an age where the internet rarely forgets, the tension between personal privacy and the public’s right to know has become sharper than ever. A single news report, social media post, or judgment can linger online indefinitely, often resurfacing long after its relevance has faded. This permanence fuels the debate on the “Right to be Forgotten”, a right that allows individuals to seek removal or restriction of personal information from public access. Globally, this right gained recognition through the Google Spain v. AEPD, where the Court of Justice of the European Union acknowledged that individuals have a legitimate claim to limit public access to outdated or irrelevant personal data. In India, however, this right remains an evolving concept, cautiously explored by courts but yet to be fully crystallized in legislation. This article examines India’s journey in balancing privacy with public interest, its judicial developments, and the challenges of shaping RTBF in a democratic, information-driven society.
Media Law and Freedom of Expression in India
Freedom of Speech and Expression is the cornerstone of democracy flourishing in the patronage of Article 19 of the Constitution and tireless efforts of the courts in this country striving to expand its interpretation and to bring under its umbrella salient rights. In one of the early pronouncements of Romesh Thappar v. State of Madras, right to circulation was added to be an inherent part of Art.19 and now in the digital age, Anuradha Bhasin has played a significant role and ultimately gave constitutional protection to freedom of trade and commerce through the internet under the same provision.
However, freedom is never absolute. Article 19(2) authorizes circumscribed restrictions to preserve sovereignty, integrity, public order, morality, decency, defamation, and contempt of court. The media’s role as the “fourth estate” demands openness and transparency, but this openness can often clash with an individual’s plea for privacy, dignity, or a chance at reform. Thus, media freedom forms the backdrop against which the right to be forgotten is contested.
Right to be Forgotten in India
The right to be forgotten has evolved over the years and the current form of it seeks to reduce the permanent information available on the internet and effectively causes the information to be more difficult to find and it is, therefore, a form of forced omission. It allows for individuals to control and determine the extent of the information about them that is communicated to others and available for the public’s perusal. But the easy access to information online causes damage to the reputation and privacy of individuals. Thus, it essentially aims to offer a ‘right to erase’.
The Rise of the Right to Be Forgotten
Right to be forgotten originated from French jurisprudence in the corpus of ‘Right to oblivion’ or Droit a loubli in 2010 where it aimed to aid the convicts who have duly served their sentence remove their credentials from crime and crime life. Then, further gained importance in 2014 after the landmark judgement of Court of Justice of European Union in the Google Spain case which obligated search engines to delink outdated personal data upon request. The ruling subsequently codified in form of Article 17 of the General Data Protection Regulation (GDPR), which codified the “right to erasure.” The underlying rationale is compelling, the digital archive’s permanence has the potential to impair rehabilitation, dignity, and the right to reinvention. The European Union Data Protection Directive 95/46 and the 2000/31/EC Directive on E-Commerce in the Common Market together acted as the bedrock for this judgement. Thereafter, the right has been upheld by different courts around the world, especially in the UK.
Legal Framework of Right to be forgotten in India
India is on the brink of recognising the right to be forgotten with legislation passed but still awaiting notification. In 2023, Parliament took a leap and went on to pass the Digital Personal Data Protection Bill which secured the president’s assent on 11th August 2023, however the substantive provisions of the Act have still not been notified, equating it to a blunt ended sword. Section 12 of the Act titled, ‘Right to correction and erasure of personal data’ aims to empower Data principle to request Data Fiduciary for erasure of her personal data, and upon receipt of such a request, Data Fiduciary is obligated to erase her personal data unless retention of the same is necessary for the specified purpose or for compliance with any law for the time being in force. Additionally, Section 8 also puts Data Fiduciary in an obligation to erase principals data on withdrawal of her consent or when the purpose of that personal data has been served.
However, for now the right has been recognized implicitly by finding a place within the legal framework of ‘Right to Privacy’ which has gained constitutional protection after K.S Puttaswamy judgement, wherein it was read within the ambit of Art. 21. Moreover, the courts are addressing the concept of right to be forgotten through setting precedents elaborating the understanding of the same.
Delhi High Court in the case of x v. YouTube, recognised right to be forgotten as an inherent and integral part of the right to privacy. Subsequently, in V. v. High Court of Karnataka, the court while recognizing the right held that, “this would be consistent with the trend in western countries, where the ‘right to be forgotten’ is applied as a rule in sensitive cases concerning women in general, as well as particularly sensitive cases involving rape or harming the modesty and reputation of the individual concerned”. Similar views have been adopted in a plethora of cases which represents the judicial willingness to add the right to be forgotten as a fundamental right but they need a specialised legal framework for the same.
A potential legislation to deal with the right to be forgotten may be the Data Protection Bill, 2019 drafted by the Justice BN Srikrishna Committee. The bill introduces the right which refers to the ability of an individual to limit, delink, delete or correct the disclosure of the personal information on the internet. It enables the people to have their personal information which is not relevant now to be deleted from any of the sites or web links. It also tries to stipulate conditions under which the right is in harmony with public interest. The draft mentions right to be forgotten under section 20 with the title, ‘Right of Data Principal’. It may also be considered as an addition to right to reputation which has been declared as an inherent and inseparable component of Art.21 in Subramanian Swamy case.
The Right to Reputation recognizes that every human being is entitled to live with dignity, and not in a manner reduced to that of animals. Since reputation is intrinsically connected to the quality of life, it safeguards an individual’s right to a dignified existence. In a similar fashion, the Right to be Forgotten seeks to ensure that a person’s past does not hinder their ability to reform, change, or build a better future. It is rooted in the principle that past events should not dictate one’s present or future life. Closely tied to the Right to Privacy, it protects individuals from the unnecessary and harmful exposure of irrelevant past information, which could otherwise undermine both their dignity and their private life.
Balancing Privacy and Public Interest
Right to be forgotten presents a complex rift in India where, right to privacy empowers to restrict information and right to information focuses on sharing information facilitating transparency. While every individual has power to control their information from going to public domain, the role of media and information cannot be ignored either. With this endless debate revolving, the judiciary sought it to be necessary to strike balance and took a step forward.
In Arun Kumar case, Delhi high court suggested devising a mechanism which safeguards the right to be forgotten while not compromising on transparency and accountability of judiciary and other public bodies, stirring the current debate. Further development was made in the case of X v. Union of India wherein it was suggested that anonymisation of sensitive personal details would be more appropriate than removal of data from public record. Further, the Personal Data Protection Bill has also proposed to establish a Data Protection Authority to oversee and enforce Data Protection laws in India. It sets precedents and and shapes the contours of the right to be forgotten in India.
Conclusion
The right to be forgotten in India seeks to balance individual privacy with public access to information. As technology advances, media law and freedom of expression remain essential for democracy, yet the internet’s permanent nature challenges privacy. While not yet formally enforced, DPDP Act and judicial precedents indicate progress. Courts recognize the need for individuals to manage their digital presence while maintaining public information access.
Landmark cases like Anuradha Bhasin and various High Court rulings have laid the foundation for this evolving right. Establishing a Data Protection Authority will further balance privacy and public interest. Ultimately, the right to be forgotten supports human dignity and reform, essential in the digital age. India must protect privacy without hindering free information flow, ensuring a harmonious coexistence of the right to be forgotten and media freedom for society’s benefit.
Sources
1 Google Spain v. AEPD, ECLI:EU:C:2014:317
2 The Constitution of India, art.19(1)(a).
3 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
4 Anuradha Bhasin v. Union of India, AIR 2020 SC 1308.
5 The Constitution of India, art.19(2).
6Harikartik Ramesh and Kali Srikari Kancherla, “Unattainable Balance: The Right To Be Forgotten” Vol IX NLIU Law Review Issue II (2020).
7 Article 19, The Right To Be Forgotten: Remebering Freedom Of Expression 1 (2016).
8 Michael J Kelly & David Sataola, The Right to be Forgotten 1 UNIV. OF ILL. L. REV. 3 (2017).
9 https:/articles.manupatra.com/article-details/Right-to-be-forgotten.
10 Google Spain v. AEPD, ECLI:EU:C:2014:317.
11 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protectionof Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data(General Data Protection Regulation), art. 17, 2016 O.J. (L 119) 1.
12 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection ofIndividuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J.(L 281) 31..
13 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain LegalAspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market (Directiveon Electronic Commerce), 2000 O.J. (L 178) 1..
14 Digital Personal Data Protection Act, 2023 (No. 22 of 2023).
15 Section 12 of Digital Personal Data Protection Act, 2023 (No. 22 of 2023).
16 K.S. Puttaswamy v. Union of India, 2019 (1) SCC 1.
17 The Constitution of India, art. 21.
18 X v. YouTube, (2017) 10 SCC 1.
19 V. v. High Court of Karnataka, 2017 SCC OnLine Kar 424.
20 Jorawer Singh Munday v. Union of India, 2021 SCC OnLine Del 2306; Zulfiqar Ahman Khan v. QuintillionBusiness Media (P) Ltd., 2019 SCC OnLine Del 8494; Subhranshu Rout v. State of Odisha, (2020)SCC OnLineOri 878.
21 The Data Protection Bill, 2019 (Bill 341 of 2019).
22 The Data Protection Bill, 2019 (Bill 341 of 2019), s. 20.
23 The Constitution of India, art.21.
24 Subramaniam Swamy v. Union of India, 2016(1) SCC (Cri) 608.
