The right to be forgotten

Parliament, rather than the courts, should settle the debate

Over the past couple of years, the global debate between the right to information and the so-called right to be forgotten has reached a tipping point. In May 2014, the European Court of Justice ruled that people had a right to be forgotten, so individuals could have links to articles about them expunged from search engines. Since the court's ruling, thousands of requests have been made by people seeking to protect their privacy by having links to freely accessible web pages taken down. The European Court's ruling became contentious as many said that the right to be forgotten clashed with the right to know, in effect, and removing such material interfered with the historical record.

The debate has now reached India, with the Internet Freedom Foundation (IFF) succeeding in securing a legal intervention from the Delhi High Court this month for a case to determine whether India needs a right to be forgotten law. The IIF's petition was in response to a legal plea made by a non-resident Indian, requesting that his name be removed from a criminal case related to his family in which he was not involved. Listening to the Laksh Vir Singh Yadav vs Union of India case, the court sought a response from the ministry of communication and information technology, Google and its Indian arm, and IKanoon Software Development, which is into software publishing and consultancy, on whether an individual should have the right to request deletion of personal information available on the Internet. The petitioner had said since details of the case were available online, it affected his employment opportunities and as such, IndianKanoon should remove the entire copy and other details from its website and Google should remove the link to the judgment.

The IFF's argument was that a pronouncement in favour of the right to be forgotten would lead to censorship of publicly available records on the Internet by people who might have something to hide. The IFF does have a point; it is not very difficult to imagine how a formal right to be forgotten - which allows people to ask search engines such as Google to take down otherwise openly available information about them - could undermine the public interest as well as render a search engine pointless. For instance, given the alarming number of politicians with criminal antecedents in India, it is not hard to understand that they would want a lot of such details taken down from the Internet. If granted, such a right could be a boon for anyone who has something to hide from his past and help him or her to hush up incriminating facts. Besides, the aftermath of such a decision could be even more contentious because in the supposedly transparent digital world, the method of removal could remain opaque.

Besides, any ruling in favour of a right to be forgotten would face its own set of difficulties during implementation. For instance, who will be the judge of what is "irrelevant" in any particular case? Moreover, will such a ruling in India be applicable to an Internet search in any other country?

To be sure, there are no easy solutions to this debate. For, it is equally important to distinguish between an individual's right to privacy - which protects private information from being shared publicly - and the proposed right to be forgotten, which impedes the access to public records about an individual. Incidentally, as of now, India has no effective law that protects an individual's right to privacy. Therefore, finding the balance between the legitimate right to privacy of an individual and the broader right to freedom of information is a matter that should not be settled in a court of law. Instead, such societal choices should be publicly debated and legislated in Parliament.