The Right to Be Forgotten: Reconciling Freedom of Expression with Individual Privacy Rights

Abstract

One of the most debated principles in modern information law, pitting individual privacy, informational self-determination, and freedom of expression against each other, is the right to be forgotten (RTBF). With the high profile ruling of the Court of Justice of the European Union in Google Spain, and its subsequent codification into Article 17 of the General Data Protection Regulation, jurisdictions the world over have struggled with whether and how far people should have the right to request the erasure or de-indexing of published information that although lawful to do so, has long since lost its relevance to active discussion. The paper will provide a doctrinal and comparative analysis of the right to be forgotten and its jurisprudential roots in the European Union and its acceptance in India, the United States, and other jurisdictions that have different constitutional obligations to expressive freedom. The paper determines the structural tension between the RTBF and the right to freedom of speech and expression, discusses the balancing tests that courts and data protection authorities have developed, and discusses the practical mechanics of delisting requests using comparative data. The paper also discusses the problem of extraterritorial adjudication, the danger of privatized censorship that is created by adjudication led by intermediaries, and the lack of a codified RTBF in India despite the acknowledgment of informational privacy as one of the aspects of the right to life established under the Constitution of Article 21. The paper has concluded that a reasonably customized, circumstantially sensitive, judicially controlled RTBF framework, as opposed to a blanket right to erasure, provides the most justifiable way to resolve these conflicting constitutional values.