white_paper_on_data_protection_in_india_171127_final_v2

Supreme Court opined that, ―the impact of the digital age results in information on the
Internet being permanent. Moreover, any endeavour to remove information from the Internet
may not result in its absolute obliteration. It is thus, said that in the digital world
preservation is the norm and forgetting a struggle. 639 People are not static; they are entitled
to re-invent themselves and correct their past actions. It is privacy which nurtures this ability
and removes the shackles of unadvisable things which may have been done in the past. ‖640
Therefore, the recognition of the right to privacy envisages within its contours the right to
protect personal information on the Internet. Consequently, from this right, it follows, that
any individual may have the derivative right to remove the ‗shackles of unadvisable past
things‘ on the Internet and correct past actions.
10.2 Issues
While there is an obvious need for the possibility to erase damaging data, this right should not
amount to rewriting history. It is essential that this right is balanced against other fundamental
rights like the freedom of expression or freedom of the press. Additionally, it is necessary to
clarify which parties are required to act when the erasure of data is being requested.
(i)
Conflict with freedom of speech
In a widely cited blog post, Peter Fleischer, chief privacy counsel of Google, noted that the
right to be forgotten, as discussed in Europe, often covers three separate categories, each of
which proposes progressively greater threats to free speech. 641
a. ―If I post something online, do I have the right to delete it?‖
b. ―If I post something, and someone else copies it and re-posts it on their own site, do I
have the right to delete it?‖
c. ―If someone else posts something about me, do I have a right to delete it?‖
Therefore, the issue at hand is to what extent can the right to be forgotten be compatible with
the right to freedom of speech and expression – whether it will cover only category one, or
will it cover both category one and two, or will it cover all three categories.
According to the EU GDPR, when someone demands the erasure of personal data, an Internet
Service Provider ―shall have the obligation to erase personal data without undue delay‖,
unless the retention of the data is necessary for exercising ―the right of freedom of
expression.‖ 642 In another section, the regulation creates an exemption from the duty to
639 Justice K.S. Puttaswamy (Retd.)& Anr. v. Union of India & Ors., (2017) 10 SCALE 1 at Paragraph 65; See,
Ravi Antani, ‗The Resistance of memory: Could the European Union‘s Right to be Forgotten exist in the United
States?‘ 30 Berkeley Tech Law Journal 1173 (2015), available at:
http://scholarship.law.berkeley.edu/btlj/vol30/iss4/20/, (last accessed 21 October 2017).
640 Justice K.S. Puttaswamy (Retd.)& Anr. v. Union of India & Ors., (2017) 10 SCALE 1.
641 Jeffrey Rosen, ‗The Right to be Forgotten‘ 64 Stanford Law Review 90 (February 2012).
642 Article 17, EU GDPR.
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