In this digital world most of people’s data and information are being shared, stored, posted, downloaded, forwarded and published on digital spaces that has raised a big concern of privacy and dignity. New forms of Human Rights are emerging every time. One of them is Right to be Forgotten (RTBF). The Right to be Forgotten refers to an individual's right to request the removal, deletion, or de-indexing of personal information from online platforms, search engines, or digital databases when the information is no longer necessary, is inaccurate, outdated, unlawfully processed, or disproportionately infringes upon the person's privacy and reputation. This right is associated with internet privacy. RTBF is derived from the broader category of the right to privacy.
This right has gained limelight after the case of Google Spain SL, Google Inc v Agencia Española de Protección de Datos, Mario Costeja González (2014), in which the CJEU held for the first time that EU citizens have a right to be forgotten. Costeja objected to the data that was being processed and displayed by the tech giant Google when his name was entered on their search engine on the ground that it is irrelevant in contemporary times and is harming his reputation in the society. The CJEU held that search engine operators must remove links to webpages displayed following the search of an individual’s name that are inadequate, irrelevant, or no longer relevant, or excessive in relation to the purposes of the processing, thereby ruling in favor of recognizing a right to be forgotten. Another instance is on May 29, the Delhi High Court ruled in a batch of over 30 consolidated petitions, led by Laksh Vir Singh Yadav v Union of India. The core issue was whether informational privacy could justify the de-indexing or masking of judicial records in a system committed to open justice. The court held that the right to be forgotten flows from Article 21’s guarantees of dignity and informational privacy.
For the first time, RTBF is codified and to be found in the General Data Protection Regulation (GDPR) in addition to the right to erasure. The GDPR provides statutory recognition to the right to be forgotten in the form of the right to erasure under Article 17, Recitals 65 and 66. The individual or “data subject”, as is defined under Article 2 of the GDPR, is granted the right to ask the “controller” to erase the private data without undue delay. Many countries in Europe such as Germany, Sweden, France, Denmark, Norway, Luxembourg, Portugal, Austria, and Spain have developed notable legal provisions regarding the right to be forgotten in their domestic legislation.
Exploration of the scope of the right to be forgotten and its implications for internet search engine providers is critically important. In the digital age, personal information can remain accessible on the internet indefinitely through search engines, social media, news archives, and online databases. The right to be forgotten seeks to balance the individual’s rights to privacy, dignity, reputation, and data protection against competing interests such as freedom of expression, the public’s right to information, and the public interest. It does not provide an absolute right to erase all online information; rather, each request is assessed based on factors such as the nature of the information, its accuracy, the public interest, and the individual’s role in public life.
In the context of Nepal, the laws dealing about the protection of individual privacy such as the Privacy Act, 2075 (2018), Electronic Transactions Act 2063 (ETA) and The National Penal (Code) Act, 2074, does not incorporate the provision regarding the RTBF. Fundamental rights under the constitution of Nepal recognizes the legal basis of the right to be forgotten. Article 16 (1) provides that every person shall have the right to live with dignity. The right to be forgotten is an integral part of the right to life with dignity. To live a respectful and dignified life in this digital era erasing, deleting, or de-indexing personal information that are irrelevant, outdated, unlawfully processed, damaging individual reputation and career is one of the most fundamental aspects.
Further, article 17 (2) states that every citizen shall have freedom of opinion and expression and the right to information that at times negates RTBF, for example, when media coverage opposes an individual's dignity-that needs balancing between personal privacy and freedom of the press. Generally, both the CJEU and scholars agree that balance is needed between the right to be forgotten and the freedom of expression. What is undecided is how much weight one right should carry in relation to the other, and who should conduct the balancing.
Most important Article 28 of The Constitution of Nepal guarantees the right to privacy that states “the privacy of any person, his or her residence, property, document, data, correspondence and matters relating to his or her character shall, except in accordance with law, be inviolable.” This article does not expressly recognize the right to be forgotten. However, it provides a strong constitutional foundation from which such a right can be derived, particularly in the context of the digital age. For instance, the inclusion of “data” and “matters relating to his or her character” is particularly significant. A person is arrested and prosecuted for a criminal offence. newspapers and online news portals publish reports identifying the individual. Several years later, the person is acquitted by the court, but search engines continue to display the earlier news reports whenever the person’s name is searched. The continued online availability of those reports may damage the person’s reputation, employment opportunities, and social standing.
Based on Article 28, the individual could argue that the continued accessibility of outdated and prejudicial information infringes the privacy of matters relating to his or her character.
The new government which is in discussion of various legal amendments on existing laws must make explicit legal provisions regarding RTBF. Nepal needs to enact proper law for implementation of this right. Any future recognition of the Right to Be Forgotten in Nepal should not be absolute. It should be balanced against public interest, including freedom of expression, freedom of the press, the public’s right to information, and the principle of open justice. For example, information concerning public officials, corruption, serious crimes, or matters of significant public interest should ordinarily remain accessible unless exceptional circumstances justify otherwise.
