ABSTRACT
The right to be forgotten has increasingly become an intrinsic part of legal discussions surrounding privacy, freedom of expression and fundamental rights. This research seeks to explore the evolution of this right, its legal implications, and its impacts across different parts of the world, with particular emphasis on India. In an era dominated by digitalisation, safeguarding privacy has become paramount, necessitating a re- evaluation of communication practices and data management. One key area of debate is the erasure of criminal records for individuals who have been acquitted, falsely accused, or completed their punishment in contrast to the public interest in retaining criminal records. This paper will also examine the intersection of the Right to be Forgotten with issues related to juvenile justice and celebrity rights, highlighting the nuanced legal challenges they present. Ultimately, this research calls for a balanced and thoughtful approach to the interpretation and application of this evolving right.
KEYWORDS
Right to be Forgotten, Privacy, Data Protection, Criminal Records, Celebrity Rights
INTRODUCTION
The right to be forgotten, often known as the right to be left alone, stems from the right to privacy. It essentially means that a person has the right to request that their personal information be deleted from public resources. This privilege was recently recognized in the case of “Google v. Agencia Espanola de Proteccion de Datos, Costeja Gonzalez”. In this decision, the European Court of Justice declared that EU people have the right to have their personal information deleted from commercial search firms if it is no longer relevant. However, it should be highlighted that the right to be forgotten was not declared an absolute right and would not be considered if the information was published in accordance with freedom of speech and other legal requirements. The unprecedented expansion of information and technology has given us access to the most intimate details of human lives, both good and evil. The borders of privacy are becoming increasingly blurred. Known as the right to erasure, this concept was initially set up by the European Union in May 2014. While India currently lacks a specific law granting the right to be forgotten.
The legal process of removing or sealing a criminal record from public view is known as ‘Expungement.’ This capacity to prevent or erase a criminal conviction is useful aid supplied through legal means in order to give sentenced individuals a second chance to start their lives anew. Comparing criminal justice data allows data analysts to find trends that can improve the system’s effectiveness and quality. But there is also other side to it, in which it is argued that keeping records of criminals and their crimes is important as by tracking individuals’ criminal records, we can better assess their risk to society and ensure they are unable to harm anyone. With pace of internet and AI growing individuals have the right, under certain conditions, to request the removal of personal material, including photographs, videos, and identifiable data, from publicly available platforms such as internet searches and web directories. The issue occurs when information about celebrities is frequently exploited without their knowledge since the public considers their lives as being of public interest. Considering all this, a critical analysis of this right is necessary, where there is no place for absolute terms and the perspectives of stakeholders must be taken into account to understand the potential legal implications.
RESEARCH METHODOLOGY
The research employs the doctrinal method of research and examines the prevailing judicial and statutory frameworks, legal concepts, and the social and legal ramifications of the Right to be Forgotten. The entire research is based on an analysis of India’s major jurisdictions and a comparison with other nations that have different strategies.
This study is based on primary sources, including constitutional clauses, statutes, and important court decisions that have shaped our understanding of this right, with a focus on celebrity and juvenile rights. To illustrate the variations in judicial thinking and application, significant instances are examined. The study for this paper also relies on secondary sources for a thorough analysis of the legislation pertaining to such rights in India, and it also includes a detailed description of maintenance. Newspapers, editorials, and websites are examples of secondary sources of information for research.
REVIEW OF LITERATURE
The Right to Be Forgotten (RTBF) is a legal notion that allows anyone to request that personal information be removed from the internet, particularly search engines, if it is no longer relevant, accurate, or useful. In the landmark decision of “Google Spain SL v. Agencia Española de Protección de Datos (2014)”, the Court of Justice of the European Union (CJEU) declared that search engines must erase personal data upon request, giving rise to the concept. This verdict prompted a global debate over privacy, free expression, and the limitations of state regulation of digital content.
Smith and Johnson (2015) argue that the right to remove personal information raises significant privacy concerns, especially in relation to the increasing amount of personal data that is shared online. The research by Thompson et al. (2017) reveals the practical challenges that come with implementing the RTBF, especially in jurisdictions outside the European Union, owing to the complexities. Several academics, notably Davies (2020), have investigated how the RTBF overlaps with other rights, such as the right to free expression and the right to be informed. Davies thinks that the RTBF could generate a “chilling effect,” where individuals or organizations are reticent to share evidence that may later be removed upon command.
In conclusion, while the RTBF is commonly regarded as a fundamental privacy right, experts admit that it raises a significant legal and ethical quandary. The balance between personal privacy and the public’s right to know remains a sensitive subject, with ongoing discussions about how to implement and govern this right.
HISTORY AND EVOLUTION WORLWIDE
The Indian Supreme Court decided to hear a case whose conclusion will most likely influence the parameters of the “right to be forgotten” in 2024. The “right to erasure” is a term used in European information privacy regulations. The right to be forgotten can be generally defined as the right to have one’s digital footprint removed (from Internet searches, for example) if it breaches the right to privacy. In May 2014, the Luxembourg-based Court of Justice of the European Union (CJEU), the highest court in matters relating to the implementation and interpretation of EU law, recognized the right to be forgotten.
In what is usually referred to as the “Google Spain case,” the court ruled on Spanish lawyer Mario Costeja González’s request that Google erase information from 1998 about the forced sale of his property owing to social security debt.
Informational self-determination, or an individual’s right to regulate and limit her personal information, is now generally accepted in EU law. Article 17 defines the right to erasure. The right to be forgotten is vital for victims of “revenge porn” and individuals whose personal cases are publicized online. Aside from that, citing “Articles 7 (respect for private and family life) and 8 (protection of personal data) of the EU Charter on Fundamental Rights, the CJEU ruled that search engines must accommodate individual requests to remove data that appear inadequate, irrelevant, no longer relevant, or excessive in light of the passage of time”.
IS RIGHT TO BE FORGOTTEN NEED OF THE HOUR? – A CRITICAL ANALYSIS
MERITS: In order to find previously undiscovered patterns, data analytics combines vast amounts of data in a number of ways. Regarding the criminal justice system, data analysts can identify trends that can enhance the system’s effectiveness and quality by comparing criminal justice data (such as crime rates, recidivism rates, and drug conviction numbers) with data from other sources (such as poverty rates, educational attainment, employment history, etc. Criminal justice professionals can identify the most effective response strategies for different types of scenarios by examining the choices and results made by law enforcement when reacting to thousands of offenses. When responding to criminal conduct, law enforcement officials can make better decisions using this knowledge.
False statements made about a person or organization may cause them to lose their reputation in a defamation case. Even if these claims are later shown to be untrue or withdrawn, they may remain online for as long as possible. The person’s reputation may suffer long-term harm as a result. The plaintiffs suffered humiliation when the defendant filed a lawsuit against them and used baseless and fraudulent statements and supporting documentation in public.
A criminal record might make it difficult to find work. It is often a requirement in the job application process that one has never been convicted of a criminal offense. Expungement helps to clear up an individual’s criminal record. There is a case in which an acquitted individual petitioned the Madras High Court, claiming that he had been denied Australian citizenship since his name appears in a judgment that is publicly available on the legal portal. The single bench of Justice M. Nagaprasanna observed that once the accused is acquitted – honorably discharged by a competent Court of Law, or this Court quashes those crimes in exercise of its jurisdiction under Section 482 of the Cr.P.C. and those orders become final, the shadow of crime, if permitted to continue in place of the shadow of dignity, on any citizen, would be a travesty of the concept of life under Article 21 of the Indian Constitution.
In the absence of legislation, Justice Pratibha Singh reiterated the stance in the KS Puttuswamy case. The decision also referred to the Delhi High Court’s own decision in Zulfiqar Ahman Khan v Quintillion Businessman Media Pvt. Ltd., in which the Court acknowledged that a person’s personal and professional life can be jeopardized if appropriate relief is not granted against data publication or republication.
DEMERITS: One of the petitioners had been to India. He was the subject of a case brought under the “1985 Narcotics Drugs and Psychotropic Substances Act”. However, he was eventually freed. Upon returning home, he discovered that the High Court’s ruling was accessible online. As a result, he demanded that Google India Private Ltd., Google LLC, and others remove the records of his previous activities. Since his previous activities were having a direct impact on his work, he sought to remove all information about them from the internet. The case was then taken to the Delhi High judge in a writ petition, where the judge stated that as Indian law does not grant the right to be forgotten, the issue could not be permanently removed from social media. The Gujarat High Court declined to erase information of an acquittal, arguing that court orders should remain public.
Influential people could easily utilize their position to get their criminal record expunged or sealed. Additionally, it allows criminals to commit crimes with the confidence that their criminal records would be quickly erased through their powerful connections. The process of expungement differs by state. The eligibility standards are also determined by a number of factors, which can vary by jurisdiction. For example, when deciding whether an expungement should be granted or denied, the offence in question is most important. The types of crimes vary by location. Because the expungement process is relatively new, it is difficult to locate an attorney who is well-versed in the intricate process, which cannot be applied in all cases. One of the primary goals of criminal record monitoring is to safeguard children from danger. By tracing sex offenders’ criminal history, we can ensure that they do not live near schools or other places where children congregate.
In resolving the contradiction between the right to be forgotten and the freedom of media expression, it is required to use factors that are relevant to the disagreement over “Articles 8 and 10” of the ECHR. In recent years, there has been a considerable increase in the number of requests for erasure brought directly against online media publishers for the deletion of properly published materials available within digital media archives containing the enforcer’s personal data. Requests for the erasure of lawfully published newspaper articles containing real personal information of individuals, or for the anonymization of articles directed against online media publishers, put the right to be forgotten in a broader context, particularly in juxtaposition with freedom of journalistic communication and the right of citizens to be educated.
“Under the Unlawful Activities (Prevention) Act (UAPA)” , the Supreme Court made it clear in 2023 that anyone who “is or continues to be” even a “mere member” of a banned organization faces criminal liability for working against India’s sovereignty and integrity. Though the information is set to be confidential but it is used for legal proceedings when required. In this situation, the Right to be Forgotten—which enables people to ask for the deletion of unneeded or out-of-date personal information—may clash with UAPA’s requirements for legal transparency and national security. A person may request that specific personal information be deleted if they were a part of a prohibited group but later distance themselves from it. The law must, however, consider whether the person has truly changed or still presents a threat. A more refined strategy might be used in these situations.
CRIMINAL RECORD AND ITS IMPLICATIONS IN INDIA
In India, the concept of expungement is not specifically mentioned in any of the laws. In India, there is no statutory framework that prescribes the right to be forgotten. However, not all constitutional rights need to be written in black and white. Until the 2017 judgement in Justice KS Puttaswamy v Union Of India- in which the apex court explicitly recognised the right to privacy as a fundamental right. A concurring opinion in thus ruling by Justice SK Kaul mentions the right to be forgotten. He said that this right does not require the erasure of all traces of past existence. It would simply imply that a person who no longer wants their personal information to be processed or kept should have the ability to have it deleted from the system if it is no longer required, pertinent, or inaccurate and serves no justifiable purpose. He included a list of legitimate reasons why the right to be forgotten should not be violated in order to make it clear that it does not imply exclusivity. They included “exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds [of]… public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, an exercise or defence of legal claims” .
On a broad reading of the phrase, however, the idea of plea bargaining under Sections 265A–265L can be considered a type of expungement.
According to India’s Digital Personal Data Protection Act, 2023, an individual to whom the data pertains (referred to as the “Data Principal” under the act) has the right to have personal data that they have previously consented to be processed corrected, completed, updated, and erased. Recognition of the right to be forgotten was granted by the Karnataka High Court. The court added that dealing with situations concerning women in general and extremely delicate instances including rape or hurting the person’s modesty required this.
The Rajasthan High Court ruled that the right to be forgotten through the destruction of juvenile delinquency records is absolute provided the juvenile has been granted the benefits of Section 24. Furthermore, in the case of Jorawar Singh Mundy v. Union of India and Ors. (2021), the Delhi High Court ruled that in cases of juvenile delinquency, allowing any criminal antecedent record of a juvenile to remain intact and to be accessed, among other things, by using technology tools may not only humiliate and discredit the juvenile, but may also have a negative impact on the juvenile’s future prospects, among other things.
The Supreme Court had stated that the right to be forgotten was subject to certain restrictions, and that it could not be used if the material in question was required for the fulfillment of the right to freedom of expression and information; accomplishment of legal obligations; execution of a duty in the good of society or public health; protection of information in the public interest; for scientific or historical study, or for statistical purposes; or the emergence, execution, or protection of legal claims. When the judicial system was introduced to India during colonial times, the concept of ‘plea bargaining’ emerged. Plea negotiating allows parties to reach an agreement for a reduced sentence for the offender. In 2018, the court ruled that this practice is forbidden. Despite directives and checks and balances by the competent authorities, we discover newspapers packed with high-profile examples where the person escapes the bars through their connections or pays a significant price to clean their criminal record.
The Supreme Court discussed the “right to be let alone” in its historic 1994 decision. Among other things, a person has the right to protect his or her privacy, that of his or her family, marriage, procreation, maternity, childbearing, and education. Without his permission, no one may publish anything about the aforementioned issues, whether it is true or not,” the SC had declared. However, the decision made a distinction between the release of public data, such court rulings, and the right to be left alone. This is because the two-judge Bench had decided that the right to privacy ceases to exist once a thing becomes a matter of public record and is therefore a fair topic for comment by the press and media, among others.
DELVE INTO CELEBRITY RIGHTS:
The RTBF is a component of the celebrities’ broader range of privacy rights. AI raises issues about the control of personal information and online reputation, which relates to the “right to be forgotten” and celebrity rights stuff that attracts attention or engagement may be given priority by AI systems, which occasionally jeopardizes attempts to honor a celebrity’s request to have out-of-date or irrelevant stuff removed. Indian actor Ashutosh Kaushik recently petitioned the Delhi High Court to have his images, films, and articles taken down from the internet, claiming his “Right to be Forgotten.”
The problem arises when information about celebrities is regularly used without their consent since the public views their lives as being of “public interest.” Furthermore, celebrities have frequently been the objects of stalking and harassment, and with the development of AI, it is now simpler than ever to alter celebrity images and do harm. Information endures forever in the digital age, challenging conventional ideas of time. AI is not like humans in that it does not “forget” information. Every data record that is added to the AI’s database may not only be located in one place on the file system but may also be kept in multiple internal database places that are challenging to delete.
By the end of January 2024, images of singer Taylor Swift created by artificial intelligence were making the rounds online. These artificial intelligence (AI)-generated photos were created without Taylor’s knowledge or approval.
SUGGESTIONS
According to DPDPA, data fiduciaries must let data principals designate a successor to exercise their rights over their personal information in the event of their incapacity or death. This clause protects against data fiduciaries using a deceased celebrity’s information—including photos and deepfakes—without permission, providing protection even in the lack of express authorization. The Delhi High Court upheld an individual’s ‘Right to be Forgotten’ in Zulfiqar Ahmad Khan v Quintillion Business Media Pvt. Ltd.14. In that case, Plaintiff petitioned the Hon’ble Court for a permanent injunction regarding the Defendants, who had written two articles against Plaintiff based on harassment allegations they claimed to have received as part of the #MeToo campaign. Despite the defendants’ agreement to remove the news pieces, they were reposted on other websites in the meanwhile.
The Court recognized the Plaintiff’s right to privacy, which includes the “right to be forgotten” and the “right to be left alone,” and directed that any redistributing of the content of those originally disputed articles, or any abstract thereof, as well as any modified versions thereof, on any print or digital/electronic framework be halted during the pendency of the current suit.
Information communication technologies enable both government and private entities to dramatically violate an individual’s right to privacy by tracking and recording all online actions.
Furthermore, individuals should own their personal information. The ‘Right to be Forgotten’ allows people to retake control of their digital life. In cases of false allegations, it’s important to delete the recused person’s name to avoid ruining their image and maybe facing legal ramifications for defamation. Create explicit judicial standards for harmonizing confidentiality and the common good in ‘right to be forgotten’ situations, taking into account the nature of the data, public interest, and time after publication. Emphasis should be placed on sensitive material, and public figures should be treated with some respect, with the exception of critical information. One must also maintain transparency and responsibility in equal measure.
CONCLUSION
Regardless of the progressive ideas expressed in such speeches and legislation, there must be a system in place to ensure that the right does not become absolute. It should be remembered that there is a wealth of material in the public arena that is part of the public record. If all information is prohibited from being disseminated, it may undermine the legitimacy of records and the information linked with them. The right to be forgotten must be balanced with the right to information and freedom of expression. There is currently no specific legislation in India that examines the necessity for the Right to Be Forgotten. However, judicial precedence favors acknowledging the right. In circumstances of false claims, it is critical to remove the recused person’s name to avoid tarnishing their reputation and maybe incurring legal consequences for defamation. Create precise judicial norms for balancing confidentiality and the common good in ‘right to be forgotten’ cases, taking taken into consideration the context of the information, public interest, and time after release. Emphasis should be focused on sensitive content, and public individuals should be handled with respect, with the exception of critical information.
Maintain both transparency and responsibility in equal proportion. To address this issue, attorneys can be given incentives to take on a specific amount of expungement cases on a pro gratis basis. Paying for the expungement process might also be considered community service. As a society, we should prioritize improving the world and implementing corrective actions.
- JAHNAVI MEHROTRA,
Chanakya National Law University (CNLU), Patna