[This post has been authored by Bitthal Sharma, a student at the Rajiv Gandhi National University of Law, Patiala.]

Introduction

The Right to be Forgotten (RTBF), which was recognized by the European Court of Justice (ECJ) in the seminal case of Google Spain v. AEPD and Costeja Gonzalez has emerged as a strong pillar for providing support to the right to privacy and right to reputation of an individual. Despite being in its nascent stage, the right has already become a bone of contention in the debate of the right to freedom of expression v. the right to privacy, and which among them should be prioritised. This article argues that the right to privacy is imbued in the right to be forgotten, a manifestation of which is a requisite for the progressive realization of these rights, which inherently reside in an individual.

The Need for the Right to be Forgotten

The intellectual roots of RTBF reside in the French law, which recognizes le droit i l’oubli– or the “right of oblivion”. The RTBF protects the right to privacy of an individual by allowing him to get his personal information removed from the public domain, provided such information is irrelevant, inadequate and inaccurate. The right was duly incorporated in the General Data Protection Regulation (GDPR), after the monumental decision in the Google Spain Case in 2014. Article 17 of GDPR (Right to Erasure), originally proposed by Viviane Reading in 2010, creates a right for the data subject to get his personal data expunged on-demand on grounds including lack of necessity of retention of data, withdrawal of consent as per provisions of the Regulation, objection by the data subject, unlawful processing of data by the data controller and erasure due to legal compliance. The provision gets its authority from Recitals 35, 65 and 66 of GDPR.

Recently, privacy has emerged as one of the most essential and necessary rights ingrained in human beings for them to fully enjoy their personal life. In order to realize this, it is pertinent that an individual has control over his personal data to a reasonable extent, under which it is feasible for him to exercise his discretion in relation to the same. According to Hendel, “it is of utmost importance that internet users control the data they put online.”  Even Article 4 (2) of the Commission Proposal for a Regulation of the European Parliament and of the Council recognizes the right to delete personal data, which is defined as “any information relating to a data subject”. These aforementioned rights of an individual residing in RTFB. Not only does it shift the burden to remove any unnecessary, irrelevant or inadequate personal information of an individual to the data processor, but also confers a positive obligation on him to ensure that no such information is disseminated in any form after the validity of such request has been verified. Andrade, Gutwirth and Schonberger have insisted that RTFB is a “right to identity”. This again has been reiterated by Article 29 Data Protection Working Party, which published guidelines on the implementation of RTBF in the EU, pursuant to the Google Spain Case.

RTBF and the Manifestation of Progressive Realization of Rights in India

The doctrine of progressive realization of rights has been an innate part of Constitutional Law. According to it, the laws of a country should be in consonance with its modern ethos. They ought to be sensible and easy to apply. A Government acts in an unconstitutional manner when it contracts the pre-existing protection of some interest. In the current case, the pre-existing protection being the fundamental right to privacy, as pronounced in K.S. Puttaswamy v. Union of India, an individual possesses RTBF to enable him to request redaction of any of his personal information which is not relevant and might be prejudicial to his reputation. Taking away this right would be tantamount to infringement of the doctrine of progressive realization of rights, which mandates that a pre-existing right cannot be contracted by any entity if it has the potential of causing unnecessary harm to the person possessing such a right. The archetype of the doctrine is non-retrogression or regression, which lays down that the Government has got the power to extend any protection beyond what the Constitution requires. It can exist in two forms: regression of results and normative regression. Normative regression, which is relevant in this case refers to the situation in which realisation of a particular right vested in individuals is restricted through a change that impedes the application of state policy which gave rise to such a right in the first place. The doctrine of non-retrogression functions on the premise that going the other way round and retreating from such extension once made is not permissible. This has been formulated and implemented on numerous occasions by the US Supreme Court in Romer v. Evans and Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, to give leeway to the already existing Constitutional rights. Thus, any act trying to reduce the ambit of the right to privacy as an unenumerated right under Article 21 of the Indian Constitution by not recognizing RTBF would amount to non-retrogression, thereby rejecting the very foundation of the Constitutional doctrine of progressive realization of rights on which a host of basic rights, including the fundamental rights under Part III, trace their origin.

A slew of recent decisions by courts in cases such as Vasunathan v. The Register General, High Court of Karnataka, Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. and (Name Redacted) v. The Registrar General are testimony of the recent upsurge of a trend in which RTBF and the right to be left alone has been recognized as an integral part of an individual’s existence. In a recent judgement by the Odisha High Court in Subhranshu Rout @ Gugul v. State of Odisha, RTBF was duly recognized. The Court remarked that the right is inherent in an individual, which they can exercise as a right in rem to preserve the right to privacy and right to reputation against any unwarranted or irrelevant information in the cyberspace pertaining to themselves. Regardless of such progressive decisions, there’s an absence of consensus between various High Courts when it comes to the enactment of RTBF in the Indian landscape. The Gujrat High Court in Dharmaraj Bhanushankar Dave v. State of Gujarat failed to give any recognition per se to the right of an individual to get any information related to him redacted from any online source, proliferating the already existing obscurity pertaining to the controversial yet necessary right.

This uncertainty is somewhat mellowed down by the inclusion of RTBF under Clause 20 of the Personal Data Protection Bill, 2019 (PDP Bill), which confers upon the data principals the right to have their personal information erased, if such information is irrelevant, or made contrary to law. Such a step is undoubtedly a positive step towards the progressive realization of the right to privacy to protect the sensitive data of individuals in India, provided it is enacted and enforced in a proper manner.

Conclusion

Despite the large hue and cry on the implementation of RTBF and the lack of consensus of various courts pertaining to the same in India, the doctrine of progressive realization of rights and non-retrogression embedded in the Constitutional law favour and embody the fundamental right to privacy under Article 21. This is not to favour that the other rights including the right to free speech and expression should be overlooked along the way. What Indian needs is the balancing of the RTBF along with other rights, while not giving outright precedence to any particular right. This would enable the co-existence of the RTBF, which in itself is a necessity in order to enjoy other prerogatives enshrined in the Constitution.