Posted on: October 11, 2020 Posted by: Anvi Londhe Comments: 0
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 Internet is a space where everything is virtually indestructible. The present times are such that the people are in dire need of a regulation that grants control to them in relation to their personal information. Right to be forgotten is a right which to an extent confers that control to people. Many landmark judgments have passed in regards to this right. This article explains this right in detail.

The right to be forgotten is one of the most controversial topics of contemporary times. It emerged as an attempt to protect the personal information and dignity of the people. This right empowers individuals to ask organizations to erase their data. It also refers to the de-listing or delinking of certain information from search engines. Generally, this right enables individuals to have some amount of control over their data.

The idea of this right was first developed in France in 2010 and it was legally solidified in the landmark case Google Spain v AEPD and Mario Costeja Gonsalez[1].  Mr. Gonzalez filed a complained against a newspaper publisher and Google with AEPD a Spanish data protection agency. His case was that a Google search of his name continued to show results of the newspaper pages which contained his personal information regarding some past proceedings. AEPD rejected this complaint against the newspaper publisher but sustained it against Google. Google appealed to the European court. The Court of Justice of European Union (CJEU) held that where the information or data is ‘inaccurate, inadequate, irrelevant or excessive’, individuals have the right to ask the search engine to remove links with personal information about them, it also held that the search engine operators fall under the definition of ‘controller’ under Article 2(D) of the Directives.  This case explored the liability of data controllers under the personal data of the people. In 2016 the European Union passed the General Data Protection Regulation (GDPR) which is the core of Europe’s data protection laws. The right to be forgotten appears as the Right to Erasure in Recitals 65 and 66 and Article 17 of the GDPR. It states, “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay”. “Undue delay” is considered to be about a month.  Though there are restrictions on the application of this right this is an extremely important step towards the protection of personal data.

Though this right is important it is not yet recognized properly in India, but there are two significant judgments which act as precedents on this matter.  In the case Dharmaraj Bhanushankar v. State of Gujarat & Others[2], the petitioner contended against the free exhibition of a non-reportable judgment. He claimed violation of the right to privacy under Article 21 and contended that despite the judgment being non-reportable it was published by a site and also indexed in the Google Search results. The High Court dismissed the petition on the basis that mere publication of a non-reportable judgment does not constitute as reporting only refers to that by law reports and that the petitioner had failed to show the violation of any fundamental or legal rights. This judgment is challenging because it unnecessarily narrows down the scope of the term ‘reporting’ only to law reports. This judgment shows a clear lack of regulations for data protection or control over personal data in India. The option that remains with the people is to turn to fundamental rights, more specifically Article 21. Characteristically the rights under Article 21 are not horizontal and hence people are left with no other resort.

In contrast to this judgment, the Karnataka High Court recognized the right to be forgotten and ruled in the favor of the petitioner. In the case Sri Vasunathan v. Registrar General [3]the petitioner’s daughter had initiated criminal proceedings against a person but it was later settled as they came to a compromise. The petitioner contended that his daughter’s name appeared in the order, the cause title and was easily searchable which would threaten her reputation in the society. The High Court ruled in favour of the petitioner with Justice Bypareddy stating that this judgment is in the line with the trend in western countries where they have recognized the right to be forgotten in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned. This judgment through progressive does not take into account the fundamental concept of the right to privacy but rather the idea of modesty of a woman. This judgment is problematic because it is gender-specific.

Introduced in India’s parliament in, 2019, the Personal Data Protection Bill (PDPB) sets rules for how personal data should be processed and stored and lists people’s rights with respect to their personal information.  Right to be forgotten is included in Section 27 of the PDPB. This section confers the right to the ‘data principal’ to restrict or prevent continuing disclosure of data by a ‘data fiduciary’ if such a disclosure-(a) has served the purpose for which it was made or is no longer necessary; (b) was made based on consent under section 12 and such consent has since been withdrawn, or (c) was made contrary to the provisions of this Act or any other law made by Parliament or any State Legislature. Though this bill takes a significant amount of its concepts from the GDPR it has some key differences. The right to be forgotten isn’t the same in the GDPR and PDPB. Under GDPR a ‘data subject’ can ask for the erasure of his/ her data from the ‘controller’ on the grounds mentioned therein while such right is restricted only to prevent the continuing disclosure of personal data under PDP Bill. The ‘data principal’ under PDP Bill cannot enjoy the full removal of his/ her data from the database of the ‘data fiduciary.

The right to be forgotten though vital has many criticisms. The most frequent of them being, that this particular right infringes the right to information and expression. The right to expression and information protects the free flow of information, opinion and ideas. It applies to all media and regardless of borders. It includes the right not only to impart but also to seek and receive information. Freedom of expression has long been recognized as fundamental to both individual autonomy and free society in general. The right to privacy on the other hand is a broad concept relating to the protection of individual autonomy and the relationship between an individual and society, including government, companies, and private individuals. Both these rights are equally important and hence one cannot choose one right and discard the other. The right to be forgotten to an extent goes against the public interest. The general public has the right to information. One cannot simply request to remove a piece of information because it isn’t relevant anymore, what is irrelevant for one person might be relevant for others. Freedom of expression and the right to privacy are reciprocally strengthening but occasionally contradictory rights.

In the present day and age where everything is accessible due to the internet, a vast space which stores everything, there is a need of regulations which allow the people to control their personal information to some extent. The arguments that the information should not be erased in the public interest are to a certain level baseless because most of the times the personal information is of no use to the public. Usually, the public interest value of such information is negligible. Moreover, there is a lot of personal information that is available without the prior consent of the concerned person. Everyone deserves a second chance, and by making certain information available some people are denied the chance rehabilitation or integration into the society. Hence in today’s era, there is a dire need of such a right which protects the dignity of people and provides them with a second chance.

[1]  Case C-131/12

[2] Special Civil Application No. 1854 of 2015

[3]  2017 SCC OnLine Kar 424

WRIT PETITION No.62038 OF 2016

Anvi Londhe
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BALLB Student at ILS Law College, Pune

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