[This article is authored by Harikartik Ramesh & Kali Srikari Kancherla, students at National Law University, Delhi. It discusses how balancing the right of speech and expression and the right to privacy is at odds with India’s constitutional scheme and free speech jurisprudence.]

Abstract

Recently, adopting the recommendation of the Sri Krishna Committee Report, the Draft Data Protection Bill, 2018 incorporated a provision for the ‘right to be forgotten’ under Section 27 (Section 20 in the 2019 Draft). The right to be forgotten refers to the right a person holds against data fiduciaries such as Google and others, to delete, mask, or hide information pertaining to the person which is incorrect, irrelevant and defamatory in nature. This right has been of much interest especially in the age of the internet, where internet users leave a massive digital footprint behind every time they access the internet. This means that a person can now create a comprehensive profile about another individual within seconds by using the information which exists on social media and other platforms. Some of this information available online could be extremely personal with the potential of damaging a person’s reputation. It is, therefore, essential to examine the applicability and suitability of such a right in the Indian context.

The right to be forgotten, by its very nature, falls in the crossroads between the right of speech and expression and the right to privacy. It is therefore essential for these two rights to be balanced for the operation of the right to be forgotten. This paper shall discuss the balancing of the two rights, i.e., the right of speech and expression and the right to privacy and will demonstrate how such a balancing would not fit into India’s constitutional scheme and free speech jurisprudence. Given that India takes inspiration for the implementation of this right from Europe, the paper will also highlight the difference in constitutional approaches in Europe and India to demonstrate that the suitability of the right in Europe does not necessarily imply that its operation in India would be suitable.