What is Right to be Forgotten in India?
‘Right to be Forgotten’ or ‘Right to erasure’ as appertained in the European Union’s GDPR (General Data Protection Regulation) enables an individual to demand the search engines and website hosts for removal of their personal information or data present online. The regulation also empowers an individual to request an organization to delete their personal data. The justification behind it is to allow lawbreakers who had served their sentence to object to the publication of information regarding their crime and conviction in order to ease their process of social integration.
The concept of Right to be Forgotten is slowly gaining ground in India too through judicial pronouncements. In India, there is no statutory provision under current data protection law, though the Information Technology Act, 2000 and the rules framed thereunder provides an individual with the Right to be Forgotten. However, there is a comprehensive new data protection law proposed to be introduced in India in the form of the Personal Data Protection Bill (PDP), 2019 which carves out the right under Section 27 according to which “a data principal has a right to prevent the data fiduciary from using such data or information if data disclosure is no longer necessary, the consent to use data has been withdrawn or if data is being used contrary to the provisions of the law.”
The Supreme Court in its landmark case K.S. Puttaswamy v. Union of India held that the right to be let alone is an essential part of the autonomy and the privacy of an individual recognizing it as part of the right to life under Article 21. The Hon’ble Supreme Court had also highlighted the importance of the Right to be Forgotten in this case, and stated that if India were to recognize the Right to be forgotten as it exists under the GDPR today, “it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data or information is no longer necessary, relevant, or is incorrect and serves no legitimate interest.”
The Supreme Court had also observed that exercise of an individual’s Right to be Forgotten was subject to certain limitations, it could not be exercised where the information in question was necessary for (a) exercising the right of freedom of expression and information; (b) compliance with legal obligations; (c) the performance of a task carried out in public interest or public health;(d) archiving purposes in the public interest; ( e) scientific or historical research purposes or statistical purposes; or (f) the establishment, exercise, or defence of legal claims.
Genesis of the Right in EU
The Right to be Forgotten has been documented as a statutory right in European Union’s General Data Protection Regulation (GDPR), upheld by the courts in UK and Europe and recently encouraged by the Courts in India. The right is protected in Article 17 of the GDPR according to which, “data subjects can require the controller to erase all personal data concerning him or her held by such controller without undue delay.”
The Right to be forgotten has its genesis in the decision handed out by the Court of Justice of the European Union in 2014 in Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González ILEC 060 (CJEU 2014) where the Court of Justice held that data protection principles applied to the publication of search results by search engines and that individuals had a right to request that search engines operating in the EU delete search results obtained by a search for their name.
Interpretation of the Right by Indian Courts
The First case in India to deal with the concept of the Right to be Forgotten was Dharmaraj Bhanushankar Dave v. State of Gujarat Special, before the Gujarat High Court. While the Court did not per se recognized the ‘right to be forgotten’, the case arose as the Petitioner had led a case for the removal of a published judgment in which he had been acquitted. The Court did not grant an order for the removal of the judgment, as the petitioner had not been able to point out specific provisions of law that had been violated.
The Delhi High Court in the decision of Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd. also recognized the “right to be forgotten” and ‘Right to be left alone’ as an integral part of individual’s existence. The Court directed that “any republication of the content of the originally impugned articles or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.”
Recently, the Delhi high Court in its order in Jorawer Singh Mundy v. Union of India & Ors. held that the Petitioner is entitled to some interim protection, while the legal issues are pending adjudication by this Court. Therefore, Court directed Indian Kanoon to block the said Judgment from being accessed by using search engines such as Google/Yahoo etc and not to block access of the judgment entirely. The case revolves around Petitioner who is an American Citizen who submitted that when he travelled to India in the year 2009, a case under the Narcotics Drugs and Psychotropic Substances Act, 1985 was lodged against him.
Though the trial court had acquitted him of all the charges in the year 2011, for which an appeal was filed and a Single Judge of this Court upheld his acquittal. Petitioner after his acquittal had travelled back to the United States and pursued law and realized that he was facing a huge disadvantage due to the fact that the judgment rendered by this Court was available on Google search to any potential employer who would check his background before employing him. Due to which the petitioner was unable to get employment.
In yet another case, High Court of Orissa in Subhranshu Rout v. State of Odisha had also examined the aspect and applicability of the “Right to be Forgotten” qua Right to Privacy. It was held that” there were no orders passed on the removal of the photos and videos of the Informant from Facebook servers as the present case was a bail application, and the Informant had not raised the issue of her right to privacy and for the content to be deleted.
Though, the Court was seemingly in favour of an individual’s Right to be Forgotten in India.” The Court was also quite categorical in stating that due to the lack of appropriate legislation, the rights of the victim to have this content erased from Facebook servers remained unaddressed. The Court however held that “in cases such as this, either the victim herself or the prosecution may, seek appropriate orders to protect the victim’s fundamental right to privacy, by seeking appropriate orders to have such offensive posts erased from the public platform, irrespective of the ongoing criminal process.
For instance, even though an individual does not have an explicit Right to be Forgotten under current law, they may seek recourse for removal of their data in public domain under other legal provisions such as defamation libel, indecency, intellectual property laws (if applicable), etc.” The Court observed that “information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away.”
The Reference “to the trends in Western Courts” where they follow Right to be Forgotten in sensitive matters was made by the Karnataka High Court in (Name redacted) vs. The Registrar General, High Court of Karnataka and Ors. This case was led to remove only the name of the Petitioner’s daughter from the cause title as it was effortlessly searchable and would cause harm to her reputation.
The Petitioner’s daughter sought a declaration that there was no marriage between her and the defendant, and argued that if her name was visible as part of the order in public domain, ‘it would have repercussions even affecting the relationship with her husband and her reputation that she has in the society.’ The Court held in the Petitioner’s favour, and ordered the court registrar to redact the name from the cause title and the body of the order.
After analyzing the interpretation of Right to be Forgotten in various case laws it is seen that this is a positive development for individuals where they get the right to control their personal information and identity especially on internet- limit, delink, delete or correct the disclosure of personal information on the online platforms that is misleading, embarrassing or irrelevant and can demand the website’s hosts to erase this information. The availability of such information has devastating consequences on people’s lives that may thwart their employment prospects. Certain personal information in the public domain such as intimate photos distributed on the internet without consent is unlawful. The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 resorts with the expectations of the victim to get the wrong data or information to be erased and also provides for the establishment of grievance redressal mechanism by the intermediaries.
The ‘Right to be Forgotten’ is not new as it appears as ‘Right to Privacy’ under Article 12 of UDHR. It has evolved in the digital age and thus Right to be Forgotten must be balanced out and should be considered as an absolute human right. The Indian legislature solely gives privacy to victims, women and children but what about the accused who have been absolved of the charges by the court?
This question was discussed very recently by the Madras HC in the case of Karthick Theodre vs. Registrar General, Madras High Court and Ors observing that the Supreme Court has held “that the right to be forgotten cannot be exercised if the information is required for the performance of a task carried out in public interest.
The court further said that ‘without a precise framework or objective criteria for redaction of the name of an accused in India’s criminal justice system, the court held that it would be more appropriate to await the enactment of India’s new data protection law to exercise such rights and thus dismissed the petition’.
We may also say that human rights Act may be suitably amended in terms with the right to be forgotten and the need for legislative action in this regard.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.