Ctrl, Delete & Forget: The Emerging notion of ‘the right to be forgotten’- A threat to free expression?

In a much surprising decision by the European Court of Justice, which is the highest court in European region, came the new and emerging right of a person to be forgotten online.  The ECJ observed that the people have the right to influence what the world could know about them through online searches. Since a considerable period of time, there was a growing tussle between freedom of expression and privacy and the ECJ seems to have favoured the notions of privacy than free flow of information on the internet.  The Court held that Search engines like Google should allow online users to be ‘forgotten’ after a certain time by erasing links to web pages unless there are ‘compelling reasons’ for refraining from the same.

This ruling is now being considered as one of the important decision and may have some future prospects for other countries of across the globe including India. The world is witnessing unprecedented growth in almost every field and an enormous flow of information due to wonders and adventures of internet, science and technology of which India is no exception. As per the Mobile and Internet Association of India, (MIAI) with the ever rising number of internet users set to touch 50 million and the number of mobile users already over 400 million, India is on the verge of a 2nd  Information Technology Revolution led by connectivity.  Thus, a brief insight of the present case may scrounge some advantages for the readers and users of internet and also those who are connected through their mobiles.

It all started in the year 2009 when Mario Costeja, a Spanish lawyer, complained that while entering his name in Google led to legal notices dating to 1998 in an online page of a newspaper that highlighted his previous debts and forced sale of his property.

He contended that his debts have been resolved many years ago and was no longer relevant and thus, he requested the newspaper agency and the Google to delete the links. Upon their refusal, he approached Spanish Data Protection Agency (SDPA) arguing that his rights to the protection of his personal data were being infringed. SDPA ordered Google to expunge the links but did not ordered the same to Newspaper agency and as a result Google challenged the order on the ground of their right to free flow of information on internet.   The National high Court of Spain referred the case to ECJ where Google lost.

In India, many people complain that their reputation is being harmed by outdated, inaccurate and malicious online content on the internet. We do not have a specific law on data privacy which seems to be the necessity in this digital age. The present decision of ECJ compels us to explore the possibilities of extending this success line to the Indian digital field.

The present ruling clarifies that Search Engines operators are responsible for the processing of personal data irrespective of its source.    It may, however, affect free flow of information and may pose a serious threat to the much revered and respected notion of free expression.  A balance approach seems to be the precise course in between this struggle of right to privacy against free expression for now.

Prof. Aman Mishra  is Asst. Professor at  New Law College, Bharati Vidyapeeth Deemed University, Maharastra

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