Thursday, 28 October, 2021

Right to Be Forgotten: A Developing Concept in Law

Akhlak-Ul-Islam Tusar

In the contemporary world, the influence and existence of social media has given rise to many debates and problems that are new to the legal arena and correspondingly new legal concepts are being developed. One such legal concept is ‘right to be forgotten’ also referred to as ‘right to erasure’. Recently, the Madras High Court of India has delivered a judgment that has created new waves in the Indian subcontinent. On 16 July 2021, Justice N Anand Venkatesh adjudicated a case where the applicant sought his name to be removed from the judgment of the Court pertaining him being previously accused of crimes under Sections 417 and 376 of Indian Penal Code i.e. cheating and rape respectively and later acquitted of the same. Justice Venkatesh agreeing with the contention of the applicant regarding not being considered an accused in the eyes of law after the acquittal held that in the days of social media, being regarded as an accused even after the acquittal may act as a contributing factor in creating the image of a person before the society. Therefore, the Court agreed that the applicant was entitled to have his name removed from the judgment of the Court in which he was acquitted. Furthermore, the Court recognised ‘right to be forgotten’ as a right which is corresponding to the ‘right to privacy’. Right to privacy has been earlier declared as a fundamental right by the Apex Court of India in the case of Puttasamy v. Union of India. However, the Madras HC refrained from giving a detailed judgment on the matter as it considered the concept of ‘right to be forgotten’ a new one and it needs to hear the opinion of Members of the Bar before giving effect to this new judicial precedence.

As a developing concept, ‘right to be forgotten’ has not been  defined or recognised in codified laws in majority of the countries around the world. However, a European Union law known as General Data Protection Regulation provides definition and grounds in which this right can be exercised. According to Article 17 of the GDPR, right to erasure or right to be forgotten entitles a person to request the controller e.g. Google to erase data pertaining to that person. However, it is not an absolute right but rather is a qualified one. This right can be exercised only when the information sought to be erased has certain characteristics i.e. no longer necessary or relevant, incorrect or serves no legitimate aim or has been illegally processed. Furthermore, if the data has been processed after getting the consent of the data subject and then if the person i.e. data subject withdraws his/her consent, the person is entitled to request erasure of that particular data. However, GDPR also lays down that the information may not be forgotten or erased even after a request by the data subject on certain grounds i.e. public interest, right to freedom of expression, necessary to establish, exercise or defence of legal claims.

The Court of Justice of European Union also faced issues pertaining to ‘right to be forgotten’ or ‘right to erasure’ when the Council of State, France asked the EU Court to give preliminary judgment on the case of Google LLC v. CNLI. Referring the ‘right to be forgotten’ as ‘right to de-referencing’, the Court held that the data is to be removed by the controller i.e. Google in this case if the data becomes irrelevant and falls within the grounds of Article 17 of GDPR. Further, the territory of removing that data can be the European Union. However, outside EU the data subject cannot ask the controller to de-reference him/her as doing so would violate the right of access to information of people of outside EU. The Court also held that the Newspapers do not fall within this de-referencing law.

Now, in regards to the Madras HC case, further development can be expected. EU Court only has allowed the exercise of right to de-referencing or right to be forgotten on the controller like Google. On the other hand, the Madras HC has held to remove the name of a previously accused and now acquitted person from the judgment of the case. However, the applicant in this case has clearly said that the online searches with his name are creating problems in facing the society which the Court also agreed with. Then the question arises, whether or not it will be enough to just remove the name of the applicant from the judgment of the Court to ease his situation. Because the problem is with the social media and controllers like Google who are suggesting results when his name is typed in the search box. The Google in the EU Court of Justice has previously raised concerns that the exercise of ‘right to be forgotten’ can be used by the authoritarian governments in many countries which will result in infringement of the right to access information and right to freedom of expression. It will be something to look forward to see that if the Courts of India or Indian Subcontinent recognises the right to be forgotten then what will be the scope of it. Will it only be applicable in removing the name of an acquitted person from the judgment of a Court or will extend to controllers like Google? Also, if extends to such online platforms or social media, then will the Courts of India or other Courts in subcontinent be able to compel those data controllers to comply with the request of ‘right to be forgotten’ by a data subject or concerned person. Moreover, the question of whether the erasure of information will be in a particular domain of a state or globally is also important. Whatever may be the case, the ‘right to be forgotten’ is a significant topic that is going to be in discussion in the entire world in near future.


The writer is a student, Department

of Law, East West University