Digital Footprints and the Right to Be Forgotten

An Analysis in the Indian Context

Abstract

The advent of the internet has brought forth a novel problem – information about individuals, including data that can be detrimental to personal interests, persists within the internet for perpetuity, and can be retrieved fairly easily, thus allowing this information to cause ‘harm’ even when the repercussions involving the same have been dealt with. To address this previously unappreciated issue, the “right to be forgotten,” a derivative of the right to privacy, has been developed and has found footholds within European and Argentine jurisprudence. Under Indian law, the right has had an interesting development. While some High Courts recognised the right by tracing its scope from the right to privacy, the enactment of the “Digital Personal Data Protection Act, 2023” lent it legislative credibility under Section 15 within the phraseology of “the right to erasure”. However, the twin sources of the right, coupled with the overarching framework of the right to free speech within Article 19(1)(a), which stands in dichotomous opposition to the right to be forgotten, complicate Indian applicability. In addition, constraints such as jurisdictional concerns due to the extra-territorial nature of data published on the internet, the development of Artificial Intelligence (AI), and the psychological phenomenon known as the ‘Streisand Effect’ pose further challenges to the development of this right within Indian jurisprudence. This necessitates a thorough analysis of the right and its scope and applicability within Indian law.