Suryansh Pandey and Harshit Pathak are fourth-year students at Dharmashastra National Law University, Jabalpur
The Right to be forgotten (RTBF) has gained prominence in recent times due to the evolving concept of privacy. The RTBF emerged from the case of Mario Costeja Gonzalez, wherein the Court of Justice of the European Union upheld the right of Data Principal (“DP”) to remove his name from the Google search engine, stating that the information had become obsolete and irrelevant. The RTBF has been incorporated into the DPDP Act, 2023 under Section 12 which allows the DP to request the erasure of her personal data, unless its retention is necessary for specified purposes or compliance with any law for the time being in force. The RTBF has been recognised as a part of the Right to Life under Article 21 of the Indian constitution by the Supreme Court in the case of K.S. Puttaswamy v. UOI. However, the RTBF can come into conflict with the Right to Information, which derives from the Right to Freedom of Speech & Expression enshrined under Article 19(1)(a) of Constitution. While RTBF seeks to protect individual privacy, RTI promotes transparency and public access to information. This tension becomes especially relevant when erasure requests involve information of public interests. For instance, an RTBF application of a person previously convicted of a crime for the removal of the details of his conviction from the public search results may infringe upon the public’s right to know, especially when such information has ongoing relevance. Even after the data is deemed outdated, it may be relevant for public scrutiny.
The conflict between two fundamental rights always needs a balanced approach to accommodate both rights. The articles examines the idea of double proportionality to balance the conflict between two fundamental constitutional rights and how this idea becomes relevant to establish the adjudicatory body to decide on the request of RTBF for the de-indexing of information available online on the internet.
Double Proportionality Standard: Approach Towards Balancing the Fundamental Rights
The fundamental rights are quintessential in a welfare society but sometimes conflict arises between two rights due to the same stature of both rights and one could not be compromised for the other which raises the fundamental need for reconciliation through balancing. The doctrine of double proportionality is applied for three reasons, first when both the competing rights are of equal importance; second, when the test of single proportionality favours one right over another; and third when single proportionality is insufficient to accommodate the interests of competing rights. The Courts have resolved the conflicts between two fundamental rights through the collective interest or public interest standard, the single proportionality standard and the double proportionality standard.
The court in the case of Association for Democratic Reforms & Anr. V. UOI & Ors. has departed from the doctrinal predominance to balance fundamental rights and has adopted a four-prong test laid down in Campbell v. MGN Ltd. for the application of the double proportionality standard to balance the conflict between two fundamental rights. The examination entails the following aspects for balancing the conflict. First, whether the constitution creates a hierarchy between the two conflicting rights? If the answer is in affirmative then the rights which is above in hierarchy will prevail but if the answer is in negative then the standard will be applied from the perspective of both the rights where right A and B are in conflict; Second, whether the measure is a suitable means for furthering right A and right B; Third, whether the measure is the least restrictive and equally effective to realise the rights A and B; Fourth, whether the measure has a disproportionate impact on right A and right B. The threshold of applying the doctrine of double proportionality is very high as it is not a mechanical exercise and requires the court’s parallel analysis of the justification of interference with both rights and the issue of proportionality of each right. Hence, the cautious exercise on the comparative importance of the fundamental rights claimed is necessary before the balancing between the rights can be carried out.
Right to be Forgotten and DPDP Act, 2023: Conflict between Fundamental Rights
The earlier version of DPDP Act i.e., 2019 PDP Bill stipulated, under Section 20, the “Adjudicating Officer” as the authority for taking decision on the exercise of RTBF, an apparent diversion from the practice adopted by GDPR which gave ‘Data Controller’ the right of adjudication. The approach of the 2019 PDP Bill appears more stringent and ‘appropriate’ when compared to the DPDP Act. The DPDP Act reverted back to the approach of the GDPR and thus, strayed in the wrong direction.
RTBF, recognised under Article 21 of the Constitution, clashes with the Right to Information under Article 19(1)(a). The tension becomes especially pronounced in the digital era, where online search engines and media archives make the information instantly accessible. In such a scenario, enforcing RTBF could lead to a form of digital censorship. Thus, a constitutional dilemma of balancing these rights emerges, one whose exercise must not be left in the hands of DFs which are private bodies. As discussed above, the test of double proportionality, repeatedly applied by the courts to adjudicate such clashes of FR, has a high threshold to prove. Hence, the responsibility to adjudicate must lie in the hands of an adjudicatory body and not a private body i.e., Data Fiduciary. The involvement of “state” as an adjudicating body in the previous version (2019 PDP Bill) was an appropriate bestowment of authority. The Srikrishna Committee Report also enunciated the same thing and stated that the assignment of the adjudication to an ‘appropriate’ entity is critical. Divulging the responsibility of balancing the rights to private actors unbound by any ‘democratic accountability’, threatens the exercise of those very rights. The report firmly supported the view that RTBF has to be balanced against the ‘Right to Information’ and that such balancing cannot be done by DFs.
Authorising Data Fiduciary as the body exercising the act of balancing of rights also violates the Principles of Natural Justice (“PoNJ”). The legal principle of “Nemo judex in causa sua” entails impartiality and fairness in judicial adjudication and translates to “no one should be made a judge in their own case”. The DF, in most of the cases, would be a private body, inherently interested in the retention of the information due to its commercial viability. The assignment of adjudicatory power would make DF a judge in its own case, thereby violating the PoNJ.
Moreover, the trend in other fields involving exercise of balancing rights by Private Bodies suggests that they generally reply vaguely favouring their commercial interest. For instance, the periodic transparency audit report revealed that the application under Right to Information Act, 2005 (“RTI Act”) before the Supreme Court’s PIO (Public Information Officer) was faced with rejection 30% of the time without citing any exception provision. The same will be true for DF exercising the power to adjudicate upon the RTBF requests of the DPs due to their inherent commercial interest in the retention of the information. The wording of Section 12 of DPDP Act grants broad exceptions to the DFs such as ‘if retention necessary for specified purpose’ or ‘compliance with any other law for the time being in force’. The section does not mandate balancing of the right of free speech against RTBF, something which automatically arises with the RTBF request. Therefore, the DF cannot be compelled to carry out the act of balancing.
Even though the DP can approach the Data Protection Board of India (DPBIA) and further to the Appellate tribunal, the first instance of this process is inherently non judicial and thus requires amendment.
Conclusion
RTBF presents an apparent conflict between Right to Privacy and free speech and expression. The formal as well as the latter are constitutionally protected rights. Assigning the act of balancing to the DF, entities which are not judicially accountable and often commercially motivated, undermines the exercise of these rights. Additionally, involving DFs in exercising balancing rights, allows them to be a judge in their own case, thus, violating the PoNJ. From the example cited above, it is clearly visible that the exercise of the power of balancing by DF would compromise the assessment of competing fundamental rights.
The doctrine of Double Proportionality demands an independent evaluation of such conflicts- something which can rarely be expected from private actors. Accepting the recommendations of Srikrishna Committee, the 2019 PDP Bill rightly placed this responsibility with an adjudicatory authority. It is recommended that the adjudication of RTBF, to be meaningfully enforced, must be entrusted to an independent, judicial or quasi-judicial body. The current flaw must be corrected and for the same a statutory amendment is pertinent.