Right to be Forgotten: A Fundamental Right? 

As we can see, social media has a stronghold over us in the modern world. A person’s internet presence is often used to define their existence. The virtual world has frequently begun to determine a person’s trustworthiness in this reality. We now have access to the most personal data of both good and bad people’s lives because to the amazing progress of internet communication expertise. We have less privacy every day, and things appear to be made public more frequently. Even while we like the online rumours about other individuals, what if we were in their position? “Think about the most embarrassing thing you have ever done, and then imagine that everyone on the planet can find out about it by simply searching the same thing. Wouldn’t it be terrible for you and your family? A person’s personal information is no longer restricted to merely official records and paperwork in the age of Google, Facebook, Twitter, and other social media platforms.” People can now be found readily online and their information is just a search away. A major issue is this abrupt change in the type and breadth of personal information on the internet. Well, you don’t have to be a superstar or have committed a crime to come up in a google search.[1] Although India does not have a specific law under this ambit but the Personal Data Protection Bill 2019 recognises a similar provision. Therefore, in this article we’ll be analysing the scope of the Right to be forgotten with respect to Right to privacy, its constitutionality, need, background & implementation in India. We’ll be addressing questions like, “should it be considered a fundamental right?” followed by comparative analysis and judicial perspective with respect to India.

MEANING

The Right to be forgotten refers to the ability to, in some situations, request the removal of personal data such as names, addresses, and additional identifiable details from openly available sources, such as online searches and other web directories. When the personal data in question is no longer necessary or relevant, you have the right to request that it be removed from various publicly accessible sources, including search engines, libraries, blogs, and other public platforms.

BACKGROUND

“The first case involving this privilege was Mario Costeja Gonzalez v. Google Spain and it has origins in the French right of forgetfulness (2014). The European Court of Justice found in Mr. Mario’s favour in this issue and instructed Google to remove insufficient, irrelevant, or no longer relevant data from its search results upon a citizen’s request. The European Court concluded that the right to privacy takes precedence above both commercial interests and the public’s right to information.

The right to be forgotten was brought up for the first time in front of the Indian court in the case of Dharamraj Bhanushankar Dave v. State of Gujarat & Ors. (2015) before the Gujarat High Court. The petitioner in this case had been charged with criminal conspiracy, murder, and kidnapping but had been cleared by the court; as a result, he requested that the respondent be prohibited from posting the non-reportable judgement online because it might harm the petitioner’s personal and professional life. The court, however, rejected the notion that India has a ‘Right to be forgotten’.” [2]

Once gain in the case of “Jorawar Singh Mundy vs. Union of India”[3] In a case involving the “Access to be Forgotten,” Justice Pratibha M. Singh, who served on a single judge bench, found that the Informational right of the public and the maintaining openness in court records come before the petitioners’ right to privacy on opposite sides of the spectrum. But the court emphasised that the petitioner’s right to private came first, found that it had been violated, and ordered the respondents to take down the judgment’s access from their portals.[4]

PERSONAL DATA PROTECTION BILL, 2019

The Personal Data Protection Bill, 2019 recognises the right to be forgotten, yet there is no similar law in place in India. “Any entity has the right to restrict or protect the prolonged discovery of their private data under Section 20 of the Bill if the records:

  • Have served the purpose for which they were obtained or are no longer necessary for any such purpose;
  • Have been made with the person’s permission, which permission has since been withdrawn; or
  • Were made in violation of the PDP Bill or any other law in effect.

This clause limited the validity of this provision to orders issued by the adjudicating officer designated by the Bill. When making such a decision, the officer must consider a number of factors, including:

  • The sensitivity of the private information;
  • The extent of the disclosure; The extent of access and availability that was sought to be restricted or avoided;
  • The individual’s place in society; and
  • The significance of the private information to the general public.
  • The main points of the information disclosure and the person’s actions.

Section 20 of the Bill recognises this right, as was previously mentioned. There are a few other clauses that reinforce the fundamentals of the right to be forgotten in addition to this one.”[5]

In certain ways, “the right to be forgotten” and the “right to correction and erasure” are related in clause 18. Private information that is erroneous or misleading must be changed, and private data that is no longer necessary for processing and analysis must be removed. Every time the data trustee makes a modification or deletion, they are required to notify the people and organisations to whom the information was exposed.

According to clause 9, a data trustee is not permitted to keep personal data longer than the actual time for which it was acquired unless the data principle willingly agrees or there is other legal requirement to do so. The regular examination to assess whether or not personal data should be preserved is another duty of data trustees.

According to clause 36(b), the right to restrict publication of personal data does not apply when that data is necessary to uphold a legitimate authority or claim, defend against accusations, seek legal guidance, or serve other similar objectives.

“RIGHT TO BE FORGOTTEN” A PART OF “RIGHT TO PRIVACY”

“The most important and essential right in the Indian Constitution is Article 21. It states that no one may be robbed of their life or personal freedom until doing so in accordance with a legal process. The Supreme Court ruled that the Right to Privacy is a basic right and would be incorporated into the Right to Life guaranteed by Article 21 of the Constitution in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India. According to the Supreme Court, a person’s ability to exercise control over his personal information and lead a self-determined life includes the ability to do so with regard to his online presence.”[6]

In the case Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. and others, Zulfiqar Ahman Khan demanded the deletion of articles that had been published against him on the news website The Quint. A person’s existence is intrinsically tied to their right to solitude and their right to be forgotten, according to the Delhi High Court.

“The right to be forgotten is not explicitly recognised under Indian law in the same way as it is in EU data protection laws, but the Supreme Court did so in the well-known K.S. Puttaswamy v. Union of India”[7] case., while regarding a citizen’s right to be forgotten commented that “If we were to recognize a similar right, it would only mean that an individual who is no longer desirous of his data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest” 

The Right to Privacy, which is a Fundamental Right under Article 21 of the Indian Constitution, includes the Right to be Forgotten. But it’s still unclear how India feels about whether the right to be forgotten is a fundamental freedom. However, thanks to the B.N. Shri Krishna committee’s suggestion under the Personal Data Protection Bill, 2019—which has not yet been approved by Parliament—this right may become a legislative one since Section 20 of Chapter V, headed “Rights of Data Principal,” specifically recognises it.

NEED OF “THE RIGHT TO BE FORGOTTEN”

  • The right to be forgotten can significantly increase safety and play a significant role in enhancing independence and organisation.
  • Both state-sponsored and independent artists possess a wide range of authority over internet-based psychological profiles and personal information.
  • People who are given the freedom to take ownership of their data have more control over their augmented personas. Most online personal information has unquestionably more intrinsic worth for the individual than culture as a whole and is not relevant to public interest arguments. “Considering the differences between what is valuable to an individual, what is interesting to the general public, and what is in the public interest, ongoing legal and administrative developments in this area have been cognizant of this.”[8]

CHALLENGES OR ISSUES

  • Danger to Journalism:

Journalists may encounter difficulties in communicating news and information to the public if the Right to be forgotten is put into effect. The press and media sector would be in a state of chaos as they would have to wait for the adjudicating officer’s decisions. The journalists will experience difficulties when trying to spread thoughts and information through the media.

  • Breach of Expression Rights:

“Expression rights are fundamental human rights. The freedom of expression of citizens may be hampered by the removal of online content from the internet. As the balance of power towards removing the information shifts in favour of the person whose information has been made public, they will have difficulty expressing their opinions through written articles, books, television, the internet, or any other medium. They won’t feel free to share their thoughts or convictions over a certain subject.

  • Impact on Freedom of Speech:

According to Rosen, the Right to Be Forgotten poses the greatest danger to free speech in the ensuing ten years. If a person’s previous wrongdoings are published online, the public will have easy access to read or view them and will evaluate that person based on his or her previous deeds.”[9]

IMPLEMENTATION OF “THE RIGHT TO BE FORGOTTEN” IN INDIA

The Madras High Court has ruled that court decisions are not covered by the right to be forgotten. The majority of Indians would agree that the Right to be forgotten is still in its infancy. It should be advised to use the following in India to execute this right:

Recent events show how seriously this Bill should be put into effect. It is essential that people are safeguarded against risks at advanced stages. To prevent any potential contradiction between the two fundamental rights, a system is envisaged that makes sense of clear situations and produces clear decisions.

  • This might be instilled in each person right away with the help of a solid information security policy. The right to be forgotten may be utilised to help people further safeguard their security.
  • Online search engines and huge computerised stages can change their rules and decide to disconnect and delete specific pieces of information. “In any case, big businesses like Google have kept certain data even after being accused by a candidate in the Kerala High Court. This demonstrates that this strategy for enforcing the law is the least useful.
  • Several courts have interpreted the Right to be forgotten in their judgments, taking into account international law, regardless of how the PDP Bill was rejected. Even if the right has been acknowledged and upheld by the Delhi and Karnataka High Courts, there is still more work to be done to develop a clear strategy that successfully safeguards the right to data and the right to free speech and expression. They might file a complaint in the interim to make their fundamental right to protection known.

However, combining the three and employing them consistently might help with the proper development and use of the right to be forgotten in India. The development of the right to be forgotten in various countries is also important to note.”[10]

CONCLUSION

The freedom of speech and expression is guaranteed by Article 19(1)(a) of the Indian Constitution. This freedom is subject to reasonable restrictions, as stated in Article 19(2) of the Constitution. In order to fulfil the right to be forgotten, a significant constitutional amendment should include safety as a justification for appropriate constraints under Article 19. Being forgotten might not be as viable as it once was given the necessity for system expansion. For example, when enforcing the right to articulation and information, when carrying out legal obligations, “when concluding a project in the public interest or for the public health, when having quantifiable or scientifically verifiable exploration goals, or when establishing, enforcing, or protecting legitimate situations. The Parliament and Supreme Court should carefully consider the Right to be forgotten in order to establish a balance between the conflicting rights to privacy and freedom of expression.” In the era of electronic, data is a valuable resource that shouldn’t be unmanaged. India should therefore implement a strict data protection regime in this case. The Indian Constitution’s Article 19(2), which outlines the conditions for limiting the right to freedom of expression, must be changed to include privacy as a reason in order to safeguard this right. By construing one’s right to privacy and others’ access to information in a way that is harmonious, the PDP Bill will work to strike a balance between Article 21 and Article 19. It is also necessary to clear up the uncertainty surrounding the appropriate authorities. “The judge must reduce conflicts as well in order to establish consistent precedents for the right to be forgotten issues. Also, if the relevant data is not completely wiped, this right will be meaningless. The right to be forgotten should be included in the international law on data security for this extraterritorial application,” and this law should then be enforced globally to assure the true meaning of this right.


[1] Right to be forgotten, available at: https://blog.ipleaders.in/right-to-be-forgotten-3/#Introduction (last visited on August 22, 2022).

[2] The Evolution of the right to be forgotten in India, available at: https://www.scconline.com/blog/post/2022/01/27/the-evolution-of-right-to-be-forgotten-in-india/ (last visited on August 22, 2022). 

[3] W.P. (C) 3918/ 2020.

[4] Is the Right to Forgotten   https://blog.finology.in/constitutional-developments/right-to-be-forgotten (last visited on August 23, 2022).

[5] Right to be Forgotten and the Constitutional Dilemma, available at: https://blog.ipleaders.in/right-forgotten-constitutional-dilemma/#Limitation_of_the_right_to_be_forgotten (last visited on August 23, 2022).

[6] Right to be forgotten in India, available at: https://www.legalserviceindia.com/legal/article-7112-right-to-be-forgotten-in-india.html (last visited on August 23, 2022).

[7] (2017) 10 SCC 1.

[8] Explained, Right to be forgotten: govt position, court ruling and laws elsewhere, available at: https://indianexpress.com/article/explained/explained-right-to-be-forgotten-7691766/ (last visited on August 23, 2022).

[9] Right to be Forgotten, available at: https://www.drishtiias.com/daily-updates/daily-news-editorials/right-to-be-forgotten-2 (last visited on August 23, 2022),

[10] Right to be forgotten, available at: https://www.mediadefence.org/ereader/publications/advanced-modules-on-digital-rights-and-freedom-of-expression-online/module-5-trends-in-censorship-by-private-actors/right-to-be-forgotten/ (last visited on August 24, 2022).


Author: Poorva Choudhary


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