Consentia on International Law and Constitutional Law, Consentia on Law

Critical Analysis of Right to Forget – A New Horizon of Right to Privacy and Victimology | ISSN No: 2347-9922


            The World is the full of information. Information gives identity to individual. Individual connected with World through information. All that is happened, happening and will going to happen becomes a part of information. Being a part of civilization, a man has very keenly taken a note of everything.  Either it may be by way of history, arts science, law, transport, medical, singing, dance, sports, service, finance, criminology and all ‘logis including information technology.

             The Constitution of Indian gives everyone a right free speech and expression.  It also offers the right to live the life with dignity.  The right to life involved a right to inform. The severing of information from knowledge and knowledge from information depends on the circumstances whether one requires it or not. Such requirement or non-requirement of information which is irrelevant and which is not so essential sometime creates a need of one more right for healthy surrounding of himself or herself.

            The present papers i.e “A New Horizon of Right to Privacy and Victimology” deals with the new right introduced by European Court in the spare of Human right. It assures everyone to seek permission for unload all unhealthy and irrelevant data from online. Ultimately, by this way or that way this new right protects the privacy which is essential for better health of individuals. It also opens a space for healthy environment in digital world.

  1. Introduction

            The World is the full of information. Information gives identity to individual. Individual connected with World through info. All that is happened, happening and will going to happen becomes a part of information. Being a part of civilization, a man has very keenly taken a note of everything.  Either it may be by way of history, arts science, law, transport, medical, singing, dance, sports, service, finance, criminology and all ‘logis including information technology.

            Information technology is considered to be a subset of communications. Humans have been storing, retrieving, manipulating, and communicating information since the Sumerians in Mesopotamia who developed writing.[1] We frequently hear the words Data, Information and Knowledge which is used as if they are the same thing. But this is not the case one is presuming. The Constitution of Indian gives everyone a right free speech and expression.[2] It also offers the right to live the life with dignity.[3] The right to life involved a right to inform. The severing of information from knowledge and knowledge from information depends on the circumstances whether one requires it or not. Such requirement or non-requirement of information which is irrelevant and which is not so essential creates a need of one more right i.e right to forget.

            The interesting question is whether one can have a right to forget a thing which is irrelevant and not so essential to mentioned. Obviously this question is so technical to answer and more complicated to deal. This might be the reason to force the Delhi High Court to ask the Central Government and Google that, whether right to information includes right to forget?. In fact, the need to answer this issue fronted in the Month of Jan 2016 stating that, “whether data controllers or intermediaries such as Google, are required to delete information that is inadequate, irrelevant or no longer relevant”?. Can one forget such information? Is there any theory which supports the argument anywhere? The answer is yes in following ways .

  1. Meaning, Nature and Development of Right to Forget:

            The right to be forgotten addresses an urgent problem in the digital age. It is very hard to escape your past. The intellectual roots of the right to be forgotten can be found in French law, which recognizes le droit à l’oubli—or the “right of oblivion”. It means a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. It’s a sort of new beginning for the person who already undergone through punishment. The right to be forgotten is borne out of the European notion which is reflected in Europe’s general understanding of intellectual property from a Hegelian perspective to its criminal law.[4] There have been previous attempts to construct the idea of right to be forgotten by courts in Europe and Argentina within their existing privacy laws, and also by data protection agencies in Europe.[5]

            In fact, in 1995 Data Protection Directive (on which the ruling is based) already includes the principle underpinning the right to be forgotten. A person can ask for personal data to be deleted once that data is no longer necessary (Article 12 of the Directive). Claims that the Commission has proposed something fundamentally new in the Data Protection Regulation are therefore wrong. They have been contradicted by the Court of Justice.[6] In fact, he Directive was intended to regulate and supervise data controllers and ensure that data-processing systems “protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy.[7]

            Recently, in Google Spain SL v. Agencia Española de Protección de Datos, the Court of Justice of the European Union (CJEU) interpreted the Directive as creating a presumption that Google must delete links to personal information from search results at the request of a data. The court noted that the Directive required a balancing test. While personal data processing was permitted when it was necessary to serve the controller’s or third parties legitimate interests.

            The right to free speech and expression has been broadly promoted by Americans via first amendment of American Constitution.[8] It also given wattage to right to privacy. Privacy has also been considered to be one of the fundamental rights by the Constitutional mandates and Supreme Court of India. However, it is undoubted fact that, the right to free speech and expression has to exercise within the purview of Constitutional limitations. Similarly, Constitution of India exposits niggle in its quintessential conceptuality and percipient discord between venerated and exalted right of freedom of speech and expression of an individual, exploring manifold and multidimensional, infinite, immeasurable and unconstrained spectrums, and the controls, restrictions and constrictions, under the assumed power of “reasonableness” ingrained in the statutory provisions relating to criminal law to reviver to uphold one’s reputation. [9]

            In Lindon v. France[10] , Judge Loucaides, in his concurring opinion, held by accepting that respect for reputation is an autonomous human right, which derives its source from the European Convention for the Protection of Human Rights and Fundamental Freedoms itself[11], leads inevitably to a more effective protection of the reputation of individual’s right to freedom of expression as well as privacy.

            Similarly, European Union’s Court of Justice recently adjudicated that European Union citizens have the fundamental right to request search engines to remove search result links directly relating to them, i.e. to have them forgotten. The similar issue has risen in the Spanish case in 2010, where one Spanish man sued Google Spain and Google Inc. after a Google search brought up a digitalized auction notice of his repossessed home. He argued that since the issue had already been resolved, the information was unnecessary, infringed his privacy and blotted his reputation.[12] The similar case came before the High Court of Delhi where a person’s name is unnecessarily shown on internet as a part of criminal proceeding. In the instant case of January 2016, a petition has been filed to remove the name of the petitioner from the official site of judgment reporter and he added an opposition party to India Google. The case created a fact in issue that, whether right to forgotten is applicable to   internet spare or not. The Hon’ble High Court is also failed to form a firm opinion due to such dramatic clash between American, European and Spanish approaches of right to forgotten[13]. Internet now days make space for everything and everyone to post anything. The limitation with this context can be added by two ways. Either at the inception or at the objection. For the prior category, it requires force to finding the illegal and unauthorized contents. However, in latter case it could be eradicate after reporting the matter to intermediateries. And even if after both these stage something remain then it would be nothing but forget whatever happened.

            The right, which has been hotly debated in Europe for the past few years, has finally been codified as part of a broad new proposed data protection regulation. Although plain reading depicted the new right as a modest expansion of existing data privacy rights, but in reality it represents the biggest relief to those who suffered via illegal uploading of his or her defamatory content online. Therefore, this theory of forgotten will work in the spare of pornography too in future, if applicable and moreover one can make intermediateries liable for such contents if not removed within time. In short, as per the findings of European, the right to be forgotten could make  Facebook and Google liable for up to two percent of their global income if they failed to remove photos that has been posted by people and later regret, if the photos have been extensively dispersed already.

            The European’s very nicely coted the theory of forgotten but is this possible to someone to forget what was posted about him or her. If yes then can an individual claim for such removal? What would be the procedure for it if one claims? Unless and until the right to forget is defined more precisely as to when it would be disseminated over the next year or so up to that, it would be very hard to choose Americans or Europeans or Spanish .Because, all issues hasty create a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.

  1. International Conflict on Right to Forgotten:

            The first legal act that should be taken into consideration is Directive 95/46/EC of the European Parliament and the Council of 24 October 1995.[14] It was concerned with the protection of individuals with regard to the processing of personal data and the free movement of such data.[15] Further, this Directive has been implemented in Poland as a result of the law of 29 August 1997 on data protection.[16]

            However, there is a great conflict between United States and European countries on the data protection. They kept difference into many aspects. The European Union generally adheres to a high degree of government involvement in protection of this fundamental right.[17]

            The European Court of Justice (ECJ) applied the “right to be forgotten,” requesting that internet search engines, under certain circumstances, delist links to personal data upon request. The court’s decision establishes a contentious balance between the right to privacy and the public’s right to access to information.[18]

            However, the system of right to forgotten can be well effectuate purely on the basis jurisdictional aspects. Because of the borderless jurisdiction of cyberspace, the issue becomes conflicting one. Traditionally, it was only concerned with manual jurisdiction subject to sovereignty of nation. The problem of jurisdiction can hardly be solved without the uniform law on internet. There are many irrelevant, obnoxious data available on internet. The distinction between US and EU courts can be determined through the cases on a law relating to privacy.

  1. International Cases on Right to forgotten:

            In fact there is no exact ratio of right to forgotten mentioned in the cases dealing with. But by looking toward the persuasive values of judgments one can analyses the cases in the line of right to forgotten.

            In Melvin v. Reid,[19] decided in 1931, for example, a homemaker, who had once worked as a prostitute and who had been wrongly accused of murder, became the subject of a feature film[20] seven years after her acquittal, based on the facts of her trial. Although not specifically referencing a right to be forgotten, the court, permitting suit against the film-maker, noted: “One of the major objectives of society as it is now constituted, and of the administration of our penal system, is the rehabilitation of the fallen and the reformation of the criminal.” The court held that the unnecessary use of the plaintiff’s real name inhibited her right to obtain rehabilitation. Similarly, in Briscoe v. Reader’s[21] Digest Association, Inc., decided in 1971, the court held that a publisher’s reference to the plaintiff’s prior crimes might infringe on his ability to obtain rehabilitation.[22]

            In another case, in Nixon v. Warner Communications, Inc. for example, the Supreme Court recognized a general right to inspect and copy public records, but also suggested that courts must exercise their supervisory powers to preclude access to information for “improper purposes,” such as to “gratify private spite or promote public scandal.[23]

            These stated goals for US data protection policy certainly recognize the global nature of information technology issues. Indeed, EU data policy developments have, to some degree, pushed the world toward uniform standards of data protection, and have spurred US regulators to action.

  1. Who and How Syndrome of Right to Forgotten?

            In practice, a search engine will have to delete information when it receives a specific request from a person affected. This would mean that a citizen, whose personal data appears in search results linking to other webpages when a search is done with that person’s name, requests the removal of those links. For example, John Smith will be allowed to request Google to delete all search links to webpages containing his data, when one enters the search query ‘John Smith’ in the Google search box. Google will then have to assess the deletion request on a case-by-case basis and to apply the criteria mentioned in EU law and the European Court’s judgment. These criteria relate to the accuracy, adequacy, relevance – including time passed – and proportionality of the links, in relation to the purposes of the data processing (paragraph 93 of the Court’s ruling). The request may for example be turned down where the search engine operator concludes that for particular reasons, such as for example the public role played by John Smith, the interest of the general public to have access to the information in question justifies showing the links in Google search results. In such cases, John Smith still has the option to complain to national data protection supervisory authorities or to national courts. Public authorities will be the ultimate arbiters of the application of the Right to be Forgotten. The Right to be Forgotten is a right which is given to all citizens in the EU, no matter what their nationality, subject to the conditions outlined above.[24]

  • How to Effectuate Right to Forget:

            According to the law which is currently in force in Poland and other European countries, the online users have following rights in the context of right to forgotten. Such as

  1. a) Every person has the right to control the processing of their personal data; the right to control includes the right to request the erasure of data.[25]
  2. b) The request to erase personal data, as well all other requests can be made if data are incomplete, not up to date, inaccurate or were collected in violation of the law or are no longer necessary for the purposes for which they were collected.
  3. c) It is the rights holder who should prove that personal data are incomplete, inaccurate, not up to date or are no longer necessary for the purpose for which they were collected, after satisfaction data controller is obliged to take measures according to the law.
  4. d) If the data controller fails to act according to the request, the rights holder may turn to the Inspector General for the Protection of Personal Data with a motion to order the data controller to fulfill. If it is not effective, the rights holder has the possibility to apply to the Court.

5.2. Procedure for Application:

            The rights holder should first apply to the company operating the search engine with a request to delete the data, at the same time proving that the data is faulty. Similarly, the European law must have to apply to the company concerned. In the case of a blog or a social networking service entry, an Internet user should send their request for the erasure of data to the creators of a given service.[26] In response to the judgment[27], Google has set up a platform to assess such requests from individuals via an online form[28].

  1. Critical analysis of Right to Forgotten:

            The current debate on the disputed right is largely stemmed from the Google case which makes its analysis critical.[29] The Court in its ruling not only made explicit such a right but also declared it to be fundamental in nature. The ruling however has been criticized on being plagued by certain legal infractions and jurisprudential flaws.

            First, such a right is difficult to root in any of the European or International law. The court primarily relied on European Convention on Human Right which protects privacy as fundamental right[30]  and the 1995 EU Privacy Directives which requires “controller” processing personal data to adhere to certain standards of processing and dissemination of data as well as makes mandatory consent of the data subject to the processing of information.[31] The court’s reading of search engines into “controllers” is disputed. As Particle points out of view, interactive online services like Google are different from entitles which the 1995 Privacy Directives seek to regulate.[32] Most online services which processed data during that time were educational institutions, insurance companies which were expected to protect individual privacy because their activities were targeted towards specifically collecting and processing with personal information. However, as argued by Google search engines do not specifically process personal information but incidentally does it as a part of larger operation. According to some Spanish legal scholars, the right to be forgotten is an “a typical assumption in the sense that, it lacks legal formulation and is of limited dogmatic heft.”

            Second, thought the right has been exalted as fundamental in nature, yet the judicial test for determining such a right is based on broad weighing and arguably relevant interests. The court has devised a test of ‘fair balance’ between the right to privacy of an individual and general interest of the public in access to information to decide whether a link should be forgotten or not.[33] This is incompatible to the very nature of balancing which prerequisites two entitlements of par legal value. Inevitably in such a balance, between rights and interest, rights are bound to overweight leaving the Court open to accepting any arguments or interest as justification for infringing a fundamental right.[34] Professor George Wright believes that a genuinely fundamental right cannot be traded off and over ridden in this fashion.[35]

            Third, delving deeper it is realized that the courts use of terminology of rights and interest is inherently problematic. What the court labels as an’ interest’, namely public’s interest to have access to information, in actuality is a substantive fundamental right guaranteed by Article 11 of the EU Charter of Fundamental Rights.[36] Hence, it essentially constitutes a norm equivalent to Article 7 and 8 which seek to protect privacy[37] and protection of personal data[38] and have been used to justify the legality of disputed right. The internet has not only contributed to public information environment but also provided a platform to socialize and debate, adding to public’s access to information. The judgment hence not only seeks to balance two inherently in equivalent aspects but also mislabels a widely protected fundamental right as interest and fails to account equal weight of in ‘fair balance’ test.

  1. Criticism on right to Forgotten:
  2. The law relating to forgotten give much power to censor the thing without oversight. Only by submitting form a person can request the removal of data without any further requirement. So the right to forgotten gives much space to individual to upload and delete the data as per his choice. When once the right becomes choice it may cause much hurdles rather than the solution. In such cases individuals may effectively impede access to facts about themselves.[39]
  3. Most of the time it is claim that, it is an insufficient protection of public interest in the right to information context. Information is considered to be the part of right to life and liberty. If the liberty is granted to remove the data even though it is not so relevant, in such cases the removal of such data creates the vacuum situation in information and half information.
  4. At international level even though the subject is reflecting the conflicting interest between United State and European Union, but in reality there is no hierarchical relationship between the conflicting human rights.
  5. There is a gap between the directives issued by the European Unions and the judgments passed by the different courts regarding the implementation of right to forgotten. It offered much more powers to Google while determining any material relevant or irrelevant. When powers become absolute then it may cause danger to corrupt powerful more absolutely. This is a possible danger in future.
  6. The directive is need to formulate again in the sense, it must be accurate in its formation, conception and its desired effect. The language is vague and unclear.
  7. Right to forgotten is nothing but a super Human right. It means beyond all Human right. [40]


  1. Conclusion:

            The right to be forgotten is a multifaceted to formulate in the sense that, it covers vast range of matter which it encompasses ranging from infringement to free expression to censorship of the internet to limited jurisdiction. For that purpose, there is need to set social standard according to community interest. Similarly, there is nothing to control media to diminish the voice of expression as everyone has the right to free speech and expression fundamentally. As far censorship is concern, the rules of it is hard to apply to those posts on internet which has been reposted by someone from the post already done. Similarly, it also hard to trace due to the wide range of publications either in the forms of photos, movies, videos and many more. In that case censorships could hardly works, because it requires sue Moto powers to take cognizance. It can hardly forget that, the right contemplated in Proposal for General Data Protection has also faced political and economic determinant which is visible from the European Parliament proposing a number of amendments.

            The flimflam of the right to forget misleads in believing total erasure. However the content remains alive on the internet as always. It also needs to be understood that making search engines adjudicator of the right is not only impractical but also unwise from a public policy perspective. Achieving a balance between expression and privacy that is prudent, logical and practicable would demand trendsetter and inventive engineering. The Central Government and State Government in India must owe concern to it. It also requires the international co-operation which can be set as centers for testifying the data. A data which is savors the information and information which can savor the knowledge. Ultimately, a data which harm to social health is no longer useful to society.

[1] Butler, Jeremy G., “A History of Information Technology and Systems”, University of Arizona, retrieved 2 August 2012

[2] See Article 19 (1) a of Indian Constitution

[3] See Article 21 of Indian Constitution.

[4] Jeffrey Rosen, The Right to Be Forgotten, 64 Stanford L. Rev. Online 88, 88 (2012), available at visited on 18/11/2016 .

[5] Castellano, A Test For Data Protection Rights Effectiveness: Charting The Future Of The Right To Be Forgotten” Under The European Law, The Columbian J. of European L. Online, available at visited on 19/11/2016.

[6] European Commission “Factsheet on the Right to Forgotten”, C 131/12 for more details see _protection_ en.pdf visited on 20/12/2016

[7] Google Spain SL v. Agencia Española de Protección de Datos C-131/12 (May 13, 2014). For More details see visited on 20/12/2016

[8] For more details see visited on 20/11/2016

[9] Subramanyam Swami Vs Union of  India  Ministry of Law and others AIR 2014

[10] (2008) 46 E.H.R.R. 35 and also see Subramanyam Swami Vs Union of  India  Ministry of Law and others

[11] For more details see clause 2 of Article 10 of European Convention on Human Rights which stated that,The exercise of these freedoms, since it carries with it duties and responsibilities, maybe subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary

[12] D McGoldrick, Developments in the Right to be Forgotten, 13 Human Right L. Rev. 764, 761-776 (2013), available at (last visited Sept 20. 2015)

[13] European Commission, Factsheet on the right to be forgotten ruling, (C-131/12), available at (last visited Sept 17. 2015).

[14] Joanna Smętek & Zuzanna Warso, “The right to be forgotten – step in the right direction?”, For more details see http:// visited on 20/10/2016

[15] Ibid

[16] The law gives a number of rights to persons whom the data concerns, including the rights to request from the controller the amendment, rectification, updating of personal data, temporary or permanent withdrawal from their processing, or their erasure. For more details see

[17] James Gordley, When is the Use of Foreign Law Possible? A Hard Case: The Protection of Privacy in Europe and the United States, 67 LA. L. REV. 1073, 2007 for more details see visited on 29/11/2016

[18] Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González C‑131/12. For more details see visited on 29/10/2016

[19] Melvin v. Reid 297 P. 91 (Cal. Ct. App. 1931).

[20] The name of film was “The Red Kimono” it was a salient drama.

[21] Briscoe v. Reader’s Digest Association, Inc  483 P.2d 34 (Cal. 1971).

[22] Steven C. Bennet, “The “Right to Be Forgotten”: Reconciling EU and US Perspectives”, Berkeley Journal of International Law, Volume 30 | Issue 1 Article 4, at P.170 . For more details see visited on 29/11/2016

[23] Nixon v. Warner Communications, Inc  435 U.S. 589, 598 (1978)

[24] European Commission “Factsheet on the Right to Forgotten”, C 131/12 for more details see _protection_ en.pdf visited on 20/12/2016

[25] See Article 32 paragraph 1 point 6

[27] Google Spain SL v. Agencia Española de Protección de Datos C-131/12 (May 13, 2014). For More details see visited on 20/12/2016

[28] For more details see the link The form is available on the link mentioned above.

[29] Google Spain SL v. Agencia Española de Protección de Datos C-131/12 (May 13, 2014). For More details see visited on 20/10/2016

[30] Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S. 221, available at 1950 ENG.pdf (last visited Sept. 17 2016).

[31] Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data directive 95/46, 1995 OJ. (L 281) 31, available at http:// wipolex/  en/ text.jsp?file-id=313007 (last visited Sept. 16 2016).

[32] Patracia Sanchez Abril & Jacqueline D. Lipton, The Right to be Forgotten: Who Decided What the World Forgets? , 103 Kentucky L.J. 365, 363-389 (2014 -15).

[33] Eleni Frantziou, Further Developments In The Right To Be Forgotten: The European Court Of Justice’s Judgment In Case C-131/12, Google Spain, Sl, Google Inc V Agencia Espanola De Proteccion De Datos, 14 Human Rights L. Rev. 767, 761-777 (2014), available at http:// content/14/4/761 .full  (last visited Sept. 18, 2016)

[34] Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 259 (1996).

[35] R. George Wright, “The Right To Be Forgotten: Issuing A Voluntary Recall,” 7 Drexel L. Rev. 405, 401-425 2014-2015.

[36] Charter of Fundamental Rights of the European Union art. 11, Dec. 7, 2000, 2007 O.J. (C 303) 1, available at (last visited Sept 17. 2015).

[37] Ibid art. 7.

[38] Ibid, art. 8.

[39] Jonathan Zittrain, “Don’t Force Google to ‘Forget,’” New York Times, May 14, 2014, For more details see[

[40] Martin Husovec, “Should We Centralize the Right to Be Forgotten Clearing House?”, Center for internet and socy. For more details see[]),[


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