To Forget or Not to Forget? Supreme Court to Rule on the Right to be Forgotten

Introduction

In 2014, the Court of Justice of the European Union (CJEU), in the case of Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González, C-131/12 (Costeja case), ruled that “Right to be Forgotten” is a human right. The Right to be Forgotten appears in Recitals 65 and 66 and in Article 17 of the GDPR. It states, “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay.” However, this right is not an absolute one. Article 17(3) of the GDPR outlines exceptions to the “Right to be Forgotten.” It states that personal data erasure may not be required if processing is necessary for complying with a legal obligation, performing a task in the public interest, or exercising official authority, as long as these actions are based on legitimate legal grounds. Essentially, it balances the individual’s right to exercise autonomy over their data with broader societal interests. Even in the landmark case of Justice K. S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCC 1, Justice Sanjay Kishan Kaul noted that this right “does not mean that all aspects of earlier existence are to be obliterated… It would only mean that an individual who is no longer desirous of his personal data to be processed or stored should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest.”

Thus, the Right to be Forgotten, while being an essential component of the Right to Privacy, is not a right that can be exercised without restraints.

India’s privacy law, the Digital Personal Data Protection Act, 2023 (DPDP Act), does not explicitly mention the Right to be Forgotten, however, the Right to Erasure has been granted to the Data Principals by virtue of this Act, subject to certain restrictions.

In the absence of an absolute Right to be Forgotten, the Constitutional Courts in the country have led to the issue of different interpretations of the applicability of this Right in India. For instance, the Gujarat High Court in the case of Dharamraj Bhanushankar Dave v. State of Gujarat, denied relief to a man seeking to remove details of his acquittal in a murder and kidnapping case, arguing that it had come up during background checks while he was applying for an Australian visa, noting that orders can remain on the public domain. The Delhi High Court, on the other hand, in the recent case of Jorawer Singh Mundy v. Union of India, 2021 SCC OnLine Del 2306, allowed taking down details of case where the petitioner was acquitted citing, “The irreparable prejudice which may be caused to the Petitioner, his social life and his career prospects.”

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