By Shaan Katari Libby
In any sexual harassment or POCSO case, the name of the victim is not revealed if they are a minor. The logic is that the victim should not bear the stigma or the association for years to come. However, the perpetrators of any case anywhere in the country currently have no such right. Their names are brandished across articles, talk shows, and, of course, in court long before they are found guilty or not.
The procedure with inquiries is supposedly confidential, but human beings being what they are, there is invariably gossip even within the corridors of institutions about what gets out about who the accused is.
Arguably, after someone has served their time, they deserve a second chance, a chance to begin with a fresh slate?
This brings us to the topic at hand…the right to be forgotten. This is defined as the legal principle allowing individuals to request the removal, deletion, or de-indexing of personal data from internet searches and databases when it is no longer necessary or relevant.
The European Union is the gold standard for these protections as seen in Article 17 of the General Data Protection Regulation. It affirms the right to erasure, empowering one to prompt the expunction of their personal information. The effect is immediate, subject to withdrawal of consent, legal mandate, illegally sourced data and the obsolescence of the intended use of the information.
The US, on the other hand, does not recognise a comprehensive right to be forgotten. American legal and constitutional frameworks generally prioritise freedom of expression, press freedoms, and public access to information, values deeply entrenched in the First Amendment. The argument that is often put forward against erasing historical records/past case laws or articles on the Internet is that the public has a right to know. Famous case laws include:
- Google Spain vs AEPD (2014)—European Union
The landmark CJEU ruling marked a seminal development in European privacy jurisprudence by recognising that search engine operators bear responsibility for the processing of personal data and may be required to de-index links to information that has become irrelevant or disproportionate over time. The decision laid the doctrinal foundation for the contemporary right to be forgotten and significantly influenced the subsequent codification of Article 17 GDPR.
- Judicial Balancing Act—France
French courts have led the way in balancing individual reputation against the public’s right to information. In Google vs CNIL (2019), the Court of Justice of the European Union held that while search engines must honour valid de-referencing requests within the European Union, they are not generally required to remove search results globally. The Court emphasised that the right to data protection is not absolute and must be balanced against competing interests, particularly the public’s right to receive information.
On the other hand, should past mistakes forever define one’s future? Here are some important themes that should be discussed.
- Dignity
The protection of human dignity is a key issue when thinking about the fundamental basis for the right to be forgotten. One’s private data, once publicised, creates a sort of lasting digital presence that remains etched online. This personal information may not be congruent with that individual’s current identity or state of being. - Cyber Harassment
Cyber harassment is often exacerbated by the persistence and widespread accessibility of personal information online. Victims may experience prolonged psychological distress when harmful content, defamatory statements, or abusive communications remain searchable and easily disseminated across digital platforms. - Doxxing
Doxxing, the practice of publicly disclosing an individual’s personal information without consent, poses significant risks to privacy, safety, and personal security. Information such as home addresses, contact details, workplace information, or family data can be weaponised to facilitate intimidation, harassment, or real-world harm.
Today’s world has its own set of complications with AI and deepfakes. Two key issues are to be addressed:
Blockchain persistence
The immutable architecture of blockchain technology presents a significant challenge to the practical realisation of the right to be forgotten.
Global Harmonisation
The efficacy of the right to be forgotten is inherently constrained by the fragmented nature of global data governance.
There is a line to be carefully navigated here. Public corruption is never to be completely forgotten, lest the same mistakes be repeated down the line. Censorship and complete deletion is not the order of the day. Memory holes are far from ideal.
Ultimately what one needs is a clear set of guidelines such that individuals and entities can move forward with dignity and reputations somewhat intact after they have been duly punished. And for those who were found not guilty, all accusations must be deleted forthwith.
—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK,
and a leading advocate in Chennai. With research by Shaun Alexander
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