Beyond Deletion: The Right Against Algorithmic Rediscovery And The Constitutional Balance Between Privacy And Free Speech In India
Aadrika Prakash Gupta, OP Jindal Global University
ABSTRACT
The constitutional issue presented by "digital permanence" does not simply involve the potential for information to remain available online. Instead, the problem lies in the fact that outdated, replaced, or irrelevant information may become searchable and amplified via algorithms. In this paper I will consider whether Indian Constitutional Law provides a limited "Right Against Algorithmic Re-Discovery" under the existing guarantees of Privacy, Dignity, Autonomy, and Freedom of Speech. I argue that the relevant constitutional inquiry should not be whether an individual has an unfettered right to delete his/her past, but rather whether the persistent algorithmic prominence of legally obtained information, under certain conditions, places an undue burden on the individual's privacy. Article 19(1)(a) of the Constitution of India mandates the courts to safeguard these rights; however, the task of achieving a structure of proportionality must guide the process. Drawing upon recent judgments of the Delhi High Court, I suggest that a Court of Law may be guided by the distinction between preserving and deleting information, as well as the difference between making information discoverable through searching and increasing its visibility through algorithmic amplification. A structured definition of balancing is needed to guide the Court when determining whether preservation, deletion or masking is appropriate for preserving information and providing protection against algorithmic amplification.
