Right to Be Forgotten and Digital Memory: Preserving the Past while Protecting Privacy


The goal of the right to be forgotten (RTBF) is to provide people a true picture of their identity by allowing their previous “digital traces” that were left online to be removed. The data subject was granted the right to request the de-referencing of personal information pertaining to historical events from search engines in 2014 when the CJEU’s landmark judgment, Google Spain, was decided. As a result, the right to be forgotten (RTBF) has been incorporated in the title of Article 17 GDPR, while it is not specifically defined or regulated. Alongside this procedure, the European Court of Human Rights has consistently emphasized the need for a just balance between the freedom of expression and the right to respect for one’s private life, frequently dismissing applicants requests for removal or anonymization. Several news articles that have been released in the past due to their ongoing public interest. It acknowledged, however, that search engines may not have the same responsibility as the original producers of the information, even while highlighting the value of Internet archives for historical research and teaching. However, as discussed in the last section of this chapter, the Italian Corte di Cassazione appears not to have been swayed by this logic in a recent ruling. Although data protection law has become a crucial defense against invasions of online privacy, its place in privacy law is still ambiguous. It is in conflict with privacy in general since it begins with the goal of safeguarding “personal” rather than “private” information. In fact, data protection law protects public personal information that is, personal information that has become somewhat public due to disclosure by design. This essay, which builds on James Whitman’s comparative privacy study, contends that data protection law can be seen as an expression of the privacy culture prevalent in Continental Europe rather than as the odd bedfellow of privacy law as it is commonly known. Its strong openness to privacy in public, rather than its seeming formality, is what makes it unique. A notion that is foreign to the private Anglo-American culture. Although these two privacy cultures have “met” for a long time in various countries, this essay places their ongoing influence and conflict inside three modern privacy regimes. The article evaluates the relative openness to such claims of the US judiciary as committed to the First and Fourth Amendments, the European Court of Human Rights on Article 8 of the European Convention on Human Rights and its fused Anglo-American and Continental European privacy jurisprudence, the Court of Justice of the European Union as the authoritative voice on General Data Protection Regulation normativity, and the US judiciary by using the right to be forgotten as an archetypal privacy-in-public right in the testing context of spent criminal convictions. The conflicts that arise from attempting to combine data protection with “privacy” law, or to wed the two privacy traditions, are best illustrated by the latter body of jurisprudence. These conflicts, however, also present chances and new perspectives.

Debate Over the Approval of the Right to Be Forgotten

Because of the potential influence this right may have on our lives, there has been much debate about whether or not it should be recognized. The benefits of granting this privilege include giving a person more control over their data, assisting in the removal of harmful and unlawfully posted content, and most importantly giving them the opportunity to start again by not letting their past define them. However, there are drawbacks as well. These include the possibility of abuse, unclear boundaries because there aren’t enough laws and court rulings, decreased transparency, and restrictions on the freedom of the press and right to information. An examination of the benefits and cons imply that the advantages outweigh the disadvantages, which may be resolved by taking the proper action, therefore the right should be accorded the proper respect. The five criteria test, which aims to resolve this conflict by taking into consideration the crucial parameters, namely, the sensitiveness of the data; the extent of restriction sought; the data fiduciary’s activities and the nature of disclosure; the applicant’s prominence in the public; and finally, the necessity of the data for the public, can help to settle the potential misuse and the unclear boundaries. Meanwhile, the right to erasure can be harmoniously constructed with the rights to information and freedom of the press. Including this test was suggested by the Srikrishna Report as well.

Evolution in India

The acceptance and existence of the right to be forgotten in India have been the subject of contradictory jurisprudence. In Dharamraj Bhanushankar Dave v. State of Gujarat, the existence of the right was first questioned. The petitioner, who was found not guilty, requested that the court prevent the respondent from publicizing the judgment because it would have a negative effect on him. The Gujarat High Court (the “HC”) declined to exercise its right because there was no legal basis for rejecting the respondents and because the case’s facts and circumstances did not violate Article 21 of the Constitution. Nonetheless, the Karnataka High Court recognized the right to erasure in delicate matters affecting women when it ordered the removal of the petitioner’s daughter’s name from the cause title and orders in {Name Redacted} v. The Registrar General. In the case of Jorawer Singh Mundy v. Union of India, where the petitioner requested the judgment be overturned since it was purportedly damaging to his reputation, the Delhi High Court also recognized the right to be forgotten. Additionally, it was suggested that this right aids in erasing a person’s past experiences from memory. Furthermore, the Supreme Court acknowledged that the right to be forgotten was within the scope of the Article 21 right to life, as demonstrated in the well-known case of K.S. Puttaswamy v. Union of India. It was further held to be non-absolute and that the data could not be used for fulfilling legal obligations, defending, establishing, or carrying out legal claims, exercising the right to freedom of speech and expression, carrying out a duty in the public interest or health, or for statistical, historical, or scientific purposes.


It is strange how the technical regulatory framework of data protection law should so easily represent the ideals of the public image protecting Continental European privacy culture, which Whitman called “vague and grandiose” and which has philosophical roots in Kantian idealism and unalienable personal autonomy. However, the evidence is unquestionable. This discussion has highlighted the right’s comfortable standing in data protection law and CJEU jurisprudence since its inception in Google Spain; its outright rejection by the US judiciary in the face of free speech constitutional demands; and its contorted transformation in its ruling on spent criminal convictions. Using the relatively new right to be forgotten as a case study for privacy-in-public Article 8 jurisprudence that has been influenced by both Western privacy cultures. A thorough explanation of the underlying differences between the privacy laws in Continental Europe and the US (as well as other common law jurisdictions) may be found in James Whitman’s comparative study of privacy cultures. When viewed in the context of Whitman’s analogy, data protection law becomes less peculiar and more representative of the privacy culture of Continental Europe. Although Whitman’s method appears to be an objective, non-critical evaluation of culturally embedded privacy concerns, it also invites critique of the regimes that followed and their cultural myths. Therefore, one could contend that the inequities that plague modern US social and economic interactions are so great that a privacy law that Is essentially founded on the cultural illusions of the equal settler with equal respect and of the State as the primary foe of liberty, the latter seriously fails in its remedial endeavors in the modern era. There may also be negative thoughts about Continental European privacy laws that are based on the fallacy that the State is trustworthy. This is particularly true in the age of widespread surveillance and its potential for misuse by the government. Conversely, Whitman purposefully downplays the ongoing dynamic nature of privacy regimes in their interactions with one another that is, with other economic, legal, and cultural orders by concentrating on the historical and cultural contexts of the privacy variations.





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Judgement Analysis Written by – K.Immey Grace


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