The “right to be forgotten” (RTBF) has become one of the most complex and multifaceted legal-ethical debates of today’s digital age. The expansion of the internet and digital technology has made information permanent, accessible, and global, making it permanent, and once published, it remains online for a long time, continuously impacting a person’s life. In such a scenario, RTBF grants individuals the right to demand the removal, or at least the limitation of the visibility, of outdated, irrelevant, misleading, or harmful information. This right becomes particularly important in situations where information about a person’s past is negatively impacting their current life, employment, social standing, and mental state. At first glance, this right appears essential to protect human dignity, privacy, and self-respect, but when it conflicts with freedom of the press and the public’s “right to know,” it creates a serious constitutional and ethical dilemma that is difficult to resolve.
The concept of RTBF gained global traction in 2014 with the famous EU case “Google Spain,” where the Court ruled that search engines may, under certain circumstances, remove information from their search results that is no longer relevant or unnecessarily infringes on an individual’s privacy. This decision opened a new chapter in the field of digital rights and resulted in the legal recognition of the right to erasure in Article 17 of the General Data Protection Regulation (GDPR). However, the European model made it clear that this right is not absolute and must be balanced with important exceptions such as freedom of expression, public interest, historical records, and scientific research. Thus, RTBF was developed as a conditional right that seeks to strike a balance between individual privacy and the broader interests of society.
While no clear and dedicated legal framework for RTBF has yet been developed in India, its foundation can be traced to the right to privacy enshrined in Article 21 of the Constitution, which was recognized as a fundamental right by the Supreme Court in the landmark 2017 Puttaswamy judgment. Furthermore, the Digital Personal Data Protection Act, 2023 (DPDP Act) provides a limited right to data erasure, but it remains inadequate in providing clear guidelines for matters related to media reports, public records, and journalism. The Information Technology Rules, 2021, also provide a framework for grievance redressal, but they are unable to effectively handle this complex balance. As a result, judicial decisions on the application of RTBF in India are inconsistent and ambiguous, underscoring the need for a coherent policy.
The concept of “informational self-determination” is crucial to understanding the conflict between RTBF and freedom of the press. This principle grants individuals the right to control their personal data, digital identity, and online presence. This right becomes even more relevant today, when a person’s online image impacts their professional opportunities, social relationships, and personal life. For example, if a person was once charged with a crime but was later acquitted by a court, old news reports available on the internet can still negatively impact their lives. In such cases, RTBF can serve as a means of providing a “second chance,” allowing them to move forward in the present, free from the shadows of their past.
On the other hand, freedom of the press, enshrined in Article 19(1)(a) of the Constitution, is a fundamental pillar of democracy. It embodies not only the right to expression but also the public’s “right to know.” The role of the media is not only to provide information but also to monitor power, expose corruption, and ensure transparency in public life. If RTBF is widely used to suppress news reports, investigative journalism, or information of public interest, it could seriously undermine democratic accountability. This could become a dangerous trend for society, especially if influential individuals or public officials use this right to suppress inconvenient information related to their past.
In recent years, gag orders have been issued in the name of RTBF in some judicial cases, preventing the media from publishing or disseminating specific information. These orders often take the form of “prior restraints,” which are pre-emptive restrictions on freedom of expression and are considered highly questionable from a constitutional perspective. The problem is further exacerbated when such orders are passed unilaterally, without hearing the media or other stakeholders. This also raises questions about the transparency and impartiality of the judicial process. While in some cases, courts have ruled in favor of acquitted individuals and ordered the removal of old information, in other cases, such orders have been overturned, prioritizing press freedom. These contradictory decisions have made it clear that a consistent and clear legal framework on this subject is urgently needed in India.
The potential for misuse of RTBF is also not insignificant. Influential individuals, politicians, or those involved in economic crimes could use this right to “cleanse” their past and control public memory. Furthermore, lawsuits such as Strategic Lawsuits Against Public Participation (SLAPP) could become a means of exerting legal pressure on journalists and media outlets, preventing them from reporting on sensitive issues. Furthermore, there is the risk of the “Streisand effect,” where attempts to suppress information only lead to greater publicity, further complicating the situation.
Considering all these challenges, it is essential that India develop a well-thought-out statutory balancing test that strikes the right balance between RTBF and press freedom. This test should include key elements such as the nature of the information—whether it is purely private or clearly related to public interest; the role of the individual involved—whether they are a private citizen or a person engaged in public life; the status of the case—whether it is merely the accusation stage or a final verdict has been reached; and an assessment of actual harm—whether the availability of the information is causing concrete and proven harm to the individual. Furthermore, the principle of “least restrictive alternative” should be adopted, whereby information can first be revised, contextualized, or simply removed from search results, rather than removed entirely.
Institutional reforms can also play a crucial role in this direction. The Data Protection Board should be developed as an independent, competent, and expert body that can handle RTBF cases impartially and efficiently. Furthermore, the judiciary must bring stability to this area through clear guidelines and consistent decisions. Global experience, particularly the European Union model, demonstrates that a balanced approach is possible to address this complex issue. India, too, must develop a framework consistent with its constitutional values and societal needs, one that not only protects individual dignity and privacy but also maintains social transparency and democratic accountability.
Ultimately, the relationship between the ‘right to be forgotten’ and freedom of the press should not be viewed as competitive or antagonistic, but rather as complementary. Both rights are essential for a healthy and robust democracy. The challenge is to strike a balance between the two, so that neither the dignity and privacy of the individual is violated nor the transparency and right to information of society are compromised. This balance has become more important than ever in the digital age, and the creation of a clear, transparent, and equitable legal framework is essential. Only then can we envision a digital society where the interests of both individuals and society are equally protected.
Author is a PhD (Political Science), is a poet and social thinker.
