The right to be forgotten, which assumes great significance in the digital era, was perhaps for the first time introduced into the Indian legal vocabulary by Justice Sanjay Kishan Kaul when he wrote his separate judgment on the landmark right to privacy judgment of the apex court in 2017.
The Supreme Court has agreed to hear a petition related to the right to be forgotten, but it was in the right to privacy judgment that the germ of the idea, as far as the Indian legal system is concerned, lay and was articulated by Kaul in the separate judgment he wrote.
“The impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The footprints remain. It is thus said that in the digital world, preservation is the norm and forgetting a struggle,” Kaul wrote.
He said this makes it difficult to begin life again giving up past mistakes. “People are not static, they change and grow through their lives. They evolve. They make mistakes. But they are entitled to re-invent themselves and reform and correct their mistakes. It is privacy which nurtures this ability and removes the shackles of unadvisable things which may have been done in the past,” he said.
Taking an empathetic view of the issue from the point of view of the young who would want certain things they did as children or young adults to be erased, he wrote, “Children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their ‘ABCs’: Apple, Bluetooth, and Chat followed by Download, E-Mail, Facebook, Google, Hotmail, and Instagram. They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world,” he said.
Kaul mentioned a few examples to illustrate the need for the right to be forgotten to be considered. One of the instances he cited was about a high school teacher in Massachusetts, US, who was fired after posting on her Facebook page that she was “so not looking forward to another [school] year” since the school district’s residents were “arrogant and snobby”.
Another example was about a flight attendant of Delta Airlines who was sacked for posting suggestive photos of herself in the company’s uniform. He said that in the pre-digital era, such incidents would have never occurred. “People could then make mistakes and embarrass themselves, with the comfort that the information will be typically forgotten over time,” he said.
Kaul noted that people change and an individual should be able to determine the path of his life and not be stuck only on a path which he or she treaded initially. “An individual should have the capacity to change his/her beliefs and evolve as a person. Individuals should not live in fear that the views they expressed will forever be associated with them and thus refrain from expressing themselves,” he said.
He pointed out that the European Union Regulation of 2016 has recognised the 'right to be forgotten'. He did write though that this does not mean that all aspects of earlier existence are to be obliterated as some may have a social ramification.
“Whereas this right to control dissemination of personal information in the physical and virtual space should not amount to a right of total eraser of history, this right, as a part of the larger right of privacy, has to be balanced against other fundamental rights like the freedom of expression, or freedom of media, fundamental to a democratic society,” he wrote.
