Answer

Introduction

The Right to Be Forgotten (RTBF), evolving under Article 21, reflects informational self-determination but increasingly collides with press freedom under Article 19. Recent judicial scrutiny highlights the need to examine whether structured legal standards are required to balance competing rights.

Advantages of Statutory Test

• Clear Standards: A statutory balancing test would provide uniform and predictable criteria for courts while deciding RTBF claims.
  Eg: Delhi High Court RTBF judgment 2025 ordered removal despite accurate reporting, reflecting inconsistency.
• Prevent Misuse: It would restrict indiscriminate or blanket removal of truthful and publicly relevant information.
  Eg: IE Online Media Services Pvt Ltd v Union of India RTBF case cautioned against “floodgates” of deletion requests.
• Protect Press: A structured framework would safeguard media freedom from arbitrary restrictions through RTBF claims.
  Eg: The Supreme Court noted RTBF cannot be invoked to create a chilling effect on press freedom.
• Balance Rights: It would enable systematic balancing between the right to privacy and the right to information.
  Eg: The Court recognised RTBF as part of Article 21 but clarified it is not absolute.
• Preserve Records: It would ensure that accurate historical records and public-interest information are not erased.

Concerns with Statutory Test

• Rigid Framework: A codified test may be too inflexible to address the varied and complex nature of RTBF cases.
  Eg: The Supreme Court stayed the Delhi HC order, indicating the need for contextual flexibility.
• Discretion Loss: It may restrict judicial discretion in balancing competing rights on a case-by-case basis.
  Eg: Courts currently assess factors like truth, timing, and public interest dynamically.
• Premature Law: Codifying RTBF at an evolving stage may freeze its scope and limit future refinement.
  Eg: The Supreme Court clarified that present observations are “not a precedent”.
• Privacy Risks: A strict test may undermine genuine claims of reputational harm and dignity.
  Eg: Delhi HC highlighted “enduring stigma” despite the individual’s discharge.
• Enforcement Issues: Implementing uniform standards across digital platforms and jurisdictions may be difficult.
  Eg: Permanence of online data and search indexing complicate effective enforcement.

Way Forward

• Guideline Approach: Develop judicially evolved principles instead of rigid statutory provisions.
  Eg: Ongoing Supreme Court proceedings can shape proportionality-based standards.
• Public Interest:  Institutionalise a clear test based on truth, relevance, and societal importance.
• Layered Remedies: Adopt nuanced solutions such as de-indexing or contextual updates rather than deletion.
  Eg: Updating reports with acquittal details instead of removing them.
• Time Factor: Incorporate temporal relevance in deciding continued accessibility of information.
• Reasoned Orders: Ensure detailed judicial reasoning to transparently balance Articles 19 and 21.

Conclusion

While a statutory balancing test can enhance clarity and prevent misuse, excessive rigidity risks undermining judicial nuance. A calibrated approach anchored in evolving jurisprudence, proportionality, and transparency can reconcile privacy with press freedom in the digital age.

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