INTRODUCTION
Everyone is a consumer of cyberspace and the internet in the constantly advancing digital landscape. From using biometric data for various purposes to social media to connect with dear ones, we are all part of the group that runs cyberspace. Digital evolution is taking place rapidly, but the concern is whether our laws that protect our rights and interests can keep up with it. However, it remains pertinent to consider the treatment of your digital assets, specifically with regards to the potential legal implications “right to be forgotten” in the absence of testamentary succession.
The right to be forgotten is a complex legal topic that has long been discussed in the Indian legal scenario. The constitution of India confers on its citizens the right to privacy as a fundamental right enshrined under Article 21[1], ensuring that their liberty is protected. On the other hand, the concept of “right to be forgotten” is not explicitly enshrined under the Constitution. When crossing paths with an individual’s digital presence and inheritance of digital assets, many unanswered questions arise.
At present, India is still developing legislation for both the right to be forgotten and digital inheritance. Generally, after the demise of an individual, the inheritance of their property is governed by various laws depending on the nature of the property they owned. In case of digital assets, dying intestate makes it complex and uncertain to decide their fate than if you had a precise estate management plan.
“Internet in India Report 2024” by the Internet and Mobile Association of India highlights that there were around 886 million internet users in 2024, which is 8% more than in previous years. With 55% of the overall country’s internet population, rural India is also moving upwards. This report also highlights that the internet population of the country is expected to exceed 900 million users in the year 2025.[2]
However, despite the growing digital space, India faces challenges like digital divides, literacy, and a lack of cybersecurity regulations. Therefore, keeping up with the digital advancements is important for both citizens and the law.
BUILDING THE DIGITAL LEGACY: DIGITAL ASSETS AND FOOTPRINTS
A Digital legacy is the compilation of one’s online accounts and digital assets that are present online and have some value. The value could be monetary, provide utility, or have sentimental value. The digital assets recognise any type of data that is stored in them, and such data is retained even after you pass away. Our social media accounts, online bank accounts, documents, including photographs, audio, video, subscription services, cloud storage, and more.
When you use the internet, a trail of data is created that is called a digital footprint.[3] This acts as a record of your online activity, whether intentional, like social media or websites you visit, or unintentional, like website cookies. So, it is safe to say that the algorithm of your internet interfaces is built by your digital footprints. Digital footprints are responsible for shaping your online presence based on the content and information you access. These persist as your digital legacy even after you are gone. If the right to be forgotten is exercised before your passing away, it can help mitigate potential risks like identity theft, sensitive data information breach, and more.
RIGHT TO BE FORGOTTEN ONLINE
In India, the concept of “right to be forgotten” found its mention in the case of Dharamraj Bhanushankar Dave v. State of Gujarat & Ors (2015)[4]. In this case, the petitioner sought to prevent the publication of the online judgment of the case in which he was acquitted, contending that it would hinder his professional and personal life. However, the Gujarat High Court dismissed the petition by holding that the High Court is a Court of Record, and its judgments are public documents available on the High Court’s website and at the public counter.
The watershed moment for the right to be forgotten came with the landmark judgment of K.S. Puttaswamy v. Union of Indian,[5]where the retired judge challenged the constitutional validity of the Adhaar Scheme. The scheme had the requirement of collecting the biometric and demographic data of citizens of the country; therefore, contending that it violated the fundamental right of privacy of citizens protected under Article 21 of the Indian Constitution.[6] The nine-judge bench at the Supreme Court unanimously decided right to be forgotten is an integral part of the right to privacy and overruled previous judgments that denied it. However, the Court also laid down certain limitations for this. Another case of Jorawar Singh Mundy V. Union of India, 2021[7], also sets a precedent for the right to be forgotten in the context of digital legacy. In this case, the petitioner was previously acquitted of the case of narcotics; however, the judgment had easy access to the general public, and it simultaneously hindered his professional life. The petitioner moved to the Delhi High Court for erasure of the relevant data available about him online, contending that this was a violation of his fundamental right to privacy. The Delhi High Court acknowledged the potential prejudice that the petitioner faced due to his data being easily accessible to the general public and issued interim orders to the platforms to remove his data. However, only one platform removed the data, while others contended that the Indian legal system does not recognise the concept of the right to be forgotten. The court decided that the right to privacy of an individual is greater than the economic interest of any enterprise, and in some cases, it is even greater than the public’s right to information. Although this case directly pertains to setting a precedent for the right to be forgotten, the underlying principles indirectly provide significant relevance to an individual’s digital legacy and inheritance.
DIGITAL ESTATE PLANNING
People typically make wills for their properties so that they can be inherited by their legal heirs and ensure that they cannot be exploited. Digital estate planning also operates in the same manner. By organising, documenting, and setting up the legal arrangements for managing your online activity and digital assets following your demise.
- Fundamentals of Digital Estate Management
- Inventory creation by categorising the different accounts and
- Document them and plan secure access and privacy for them
- Legally designate a dependable person as your digital executor
- Get familiar with social media account policies[8]
LEGAL AND ETHICAL CONFLICT
The fundamentally differing goals and attributes of digital data itself give rise to the ethical and legal conflict between the right to be forgotten online and digital inheritance.
Legally, the right to be forgotten is gaining traction in India and is largely envisaged as a lifelong individual right. When applied posthumously to the digital traces of a deceased person, it raises the question about who should be entitled to this privilege and who can use it to exploit their name.
The ethical dilemma is how to attain the right balance between the rights and interests of survivors of the deceased and the deceased’s right to privacy and autonomy. Control by an individual over their personal information and prevention of its excessive distribution constitutes the foundational elements of the right to be forgotten.
Nonetheless, digital inheritance often entails the transfer of possessions and memories that are extremely valuable to the bereaved both practically and emotionally.
WAY FORWARD
India recently got a significant legislation, the Digital Personal Data Protection Act, 2023 (DPDP Act)[9]. It embarks on a new chapter in India’s digital landscape as it provides a comprehensive structure for data protection. Although the act nowhere specifically talks about ‘right to be forgotten’, it’s section 12 of the Act[10] grants the ‘right to correction and erasure of personal data’. The act also provides a provision for ‘right to nominee’, allowing the data principal to designate someone to take care of their data after their demise.
CONCLUSION
Right to be forgotten is finding its way into the Indian legal system through various judgments; however, digital inheritance still has a long way to go. Although the DPDP Act, 2023, tries to eliminate the lacunas of data privacy laws, numerous other concerns are also on the rise. With the growing legal environment, both concepts are bound to receive attention from the judiciary and legislature. Within the parameters of the current legal scenario and platform regulations, people are advised to make plans to protect their digital legacy.
Author(s) Name: Arkaja Mishra (Chandigarh University)
References:
[1] Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., [2017] 10 SCC 1
[2] India’s internet user base to surpass 900 million by 2025 driven by rural growth: Report, <https://economictimes.indiatimes.com/>, accessed on 07th May, 2025
[3] Mike Erath, ‘The Impact of your Digital Footprints as an Employee’, <https://www.locknetmanagedit.com/>, accessed on 19 April 2025
[4] Dharamraj Bhanushankar Dave v. State of Gujarat and Ors. [2017] Guj HC SCA No. 1854 of 2015
[5] [2017] 10 SCC 1
[6] Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors., [2017] 10 SCC 1
[7] [2021] Del HC [W.P.(C) 3918/2021]
[8] ‘Posthumous Digital Management: A Guide To Planning Your Digital Estate’, < https://innov8tif.com>, accessed on 19 April, 2025
[9] Digital Personal Data Protection Act, 2023
[10] Digital Personal Data Protection Act, 2023
