A high school teacher in Massachusetts, US, was fired after posting on her Facebook page that she was “so not looking forward to another [school] year” since the school district’s residents were “arrogant and snobby”. A flight attendant of Delta Airlines was sacked for posting suggestive photos of herself in the company’s uniform.
In the pre-digital era, such incidents would have never occurred. People could then make mistakes and embarrass themselves, with the comfort that the information will be forgotten over time.
Supreme Court judge Justice Sanjay Kishan Kaul mentioned these examples in his judgment on the privacy issue to throw up the idea of the 'right to be forgotten', which may be a new addition to Indian legalese, but which is highly relevant in the digital age.
As Kaul noted in his judgment, “Humans forget, but the internet does not forget and does not let humans forget.”
Explaining how the right to privacy would morph into the right to be forgotten in the context of the internet, he wrote that the right of an individual to exercise control over his personal data and to be able to control his or her own life would also encompass the individual's right to control his or her existence online.
“The existence of such a right does not imply that a criminal can obliterate his past, but that there are variant degrees of mistakes, small and big, and it cannot be said that a person should be profiled to the nth extent for all and sundry to know,” he stated.
The rationale behind the right to be forgotten, which has been recognised by the European Union Regulation of 2016, is that people change and an individual has the right to make a new beginning and not be stuck on a path that he or she treaded initially.
However, as Kaul noted, the impact of the digital age results in information on the internet being permanent. “Any endeavour to remove information from the internet does not result in its absolute obliteration. The foot prints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle.”
The judge said that children especially create perpetual digital footprints on social networking websites, and they should not be subjected to the consequences of their childish mistakes and naivety their entire life.
Kaul, however, cautioned that such a right, which would give the individual the right to control dissemination of personal information in the physical and virtual space, should not amount to a right of total eraser of history.
“This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification,” he said.
If India were to recognise a similar right, Kaul said it would only mean that an individual, who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the information is no longer necessary, relevant, or is incorrect and serves no legitimate interest.
The exceptions would be where the information or data is necessary for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims.