October 3, 2022

By Ambika Bhardwaj

This article is authored by Ambika Bhardwaj, a law student of KP Mehta School of Law, NMIMS Mumbai

right to be forgotten

Introduction

Since the advent of internet and with the great development in the technology, the number of defamation cases on the internet has witnessed an increase. Advancement in technology is no doubt a boon for the world, but with this, we have also observed some negative effects. People were worried with the technical aspects of sharing data in the beginning era of the internet. Individuals are now concerned on how to eliminate data and what regulations should regulate the withdrawal of data. Presently, few legal safeguards assure individuals the right to have deleterious information about oneself removed from the Internet. The internet’s prominence has called the notion of privacy into discussion. When compared to the initial social networking sites times, confidentiality is difficult to implement.

 As a consequence, the debate over the (RTBF) right to be forgotten has flared up on for a very prolonged period, with multiple landmark cases and relevant legislation in several parts of the world. These rights are nearly non-existent in the United States[1]. In Spain, the court system raised the ability of Spanish citizens to delete insignificant and obsolete data to the status of a right. Unnecessary and inadvertent data is essentially information that is irrelevant to the situations under which it is sought or details that are no longer correct.[2]

The target frequently emerges from data collected, stored, or maintained against a person or group of persons in the time of data-driven surveillance. The right to be forgotten refers to an individual’s ability or competency to constrain, de-link, delete, or modify the publishing of personal details on the internet that is deceiving, humiliating, irrelevant, or obsolete. In the utter lack of a data protection laws that limits the fundamental right to remove unnecessary and disparaging personal information from online space, the right to be forgotten has received a lot of attention in India.

The right to be forgotten has been acknowledged by law in the European Union underneath the General Data Protection Regulation, or GDPR, and it has been asserted by court system in the United Kingdom and Europe, but there is no comparable law in India. Even though the Personal Data Protection Bill 2019, which was introduced in the Indian Parliament by the Ministry of Electronics and Information Technology and is currently being reviewed by a Joint Parliamentary Committee (JPC) in cooperation with experts and stakeholders, evidently included and granted the Right to be Forgotten in Clause 20, that also permitted a person to limit or inhibit the further propagation of their private information.

Take of India on the RTBF

RTBF is not yet legally sanctioned in India. Even so, the Court Decided in Puttaswamy that the right to privacy is a fundamental human right. The Supreme Court stated in the Puttaswamy decision that the right of a person to exert power over his private information and to have the ability to regulate his/her own life and should also include his power to dictate his presence on the cyberspace. In the landmark judgement of Justice K.S. Puttaswamy v. Union of India[3] in 2017, the Supreme Court stated the right to privacy to be a fundamental right. The right to privacy, as per the court at the time, is guarded as an integral feature of the right to life and personal liberty under Article 21 and as aspect of the freedom and rights guaranteed by Part III of the Constitution.

Numerous High Courts have now acknowledged the right to be forgotten in their rulings, citing international case law on the subject. As mentioned by the Orissa High Court in Subhranshu Rout Gugul v. State of Odisha, the latest amendment in the Personal Data Protection Bill recognises the RTBF and offers the ability to restrict or prevent the prolonged release of their private data when:

  • Data is no longer mandatory for the intent for which it was collected;
  • It was done with the individual’s consent, which was later revoked, or 
  • It was created in contravention of any of the regulations of the Personal Data Protection Bill or any other applicable law.

The Personal Data Protection Bill was enacted in Lok Sabha on December 11, 2019, with the goal of establishing safeguards to protect individuals’ private information.

The “Right to be Forgotten” is mentioned in Clause 20 of Chapter V of this bill titled “Rights of Data Principal.” It asserts that the “data principal (the individual to whom the information is linked) shall have the power to constrain or inhibit an information fiduciary from proceeding to disclose his private information.” In general, users can de-link, limit, delete, or accurate the disclosure of their private data held by data fiduciaries underneath the Right to be Forgotten.

Important Judgements

In Zulfiqar Ahman Khan v. Quintillion Businessman Media, Zulfiqar Ahman Khan started a petition in the Delhi High Court, seeking that two posts written against him on the news website The Quint be suppressed on the basis of unknown harassment claims. While the news website deleted the parts while the trial was hold in the high court, the high court also barred the substance of those two stories from being reissued during the course of the case.

In Jorawer Singh Mundy vs. Union of India & Ors.,Jorawer Singh Mundy, an American citizen by birth but of Indian ancestry, arrived in India in 2009. So, at time, the Narcotics, Drugs, and Psychotropic Substances Act of 1985 was being used to file a case against him. Both the trial and appellate courts cleared him of all charges. After finishing his studies, Petitioner found himself at a significant disadvantage owing to the accessibility of Indian court judgments just on Google search engine to any potential employer who wanted to perform a background check on him before hiring him.

 As per the Petitioner, despite having a good academic credentials, he was unable to find work owing to the accessibility of the judgement on the internet. As a consequence, the prevailing Writ plea was lodged, urging that instructions be issued to the Respondents to delete the aforementioned decision from all of the Respondents’ respective systems, in accordance with the Petitioner’s Right to Privacy under Article 21 of the Indian Constitution.

The legal issue that the Hon’ble Court had to resolve in this particular instance was how to resolve the Petitioner’s Right to Privacy with the Right of the Public to Information and the retention of flexibility in judicial data if a Court ruling is removed from online media. As a consequence, Google India and Google LLC were directed to remove the January 29, 2013 decision in Custom v. Jorawer Singh Mundy from their search engine results. Furthermore, Indian Kanoon was instructed to avoid search results such as Google/Yahoo, etc. from indexing the mentioned decision until another court hearing.

The Gujarat High Court dismissed a plea seeking “permanent restriction on a public display of decision and order” on an online catalogue of judgements and indexing by Google in the case of Dharamraj Bhanushankar Dave vs State of Gujarat, 2017. The Petitioner’s trial was that he had been cleared of numerous offences by the Sessions Court and High Court, and the relevant decision had been deemed ‘unreportable.’ The Court dismissed the appeal as the petitioner had been unable to recognise any laws specifically that challenged his right to life and liberty, and also because publishing on a webpage did not represent “reporting” of a decision because it’s not a law report.

In Gugul v. State of Odisha, the Orrisa High Court analysed the Right to be Forgotten as a solution for victims of sexually graphic pictures or videos regularly posted on social media channels to horrify and assault women, lamenting the lack of a method to forever wipe content online in order to safeguard the right to be forgotten and calling for a debate on the subject.

In the Subhranshu Rout case, the Orissa High Court examined one’s right to be forgotten in any setting. In the aforementioned case, the Hon’ble High Court was hearing a bail application under section 439 of the Cr.P.C., in which the Petitioner, who was the suspected in the FIR, had posted specific offending pictures of the complainant on Facebook against her consent. The Court brought into question , regardless of the fact that the statute provides for criminal penalties for those who commit such crimes, the victim’s rights, particularly her right to privacy, which is inextricably connected to her right to get those inappropriate photographs removed, remained unresolved.

Conclusion

The Right to be Forgotten is not an absolute right in the context because not every proposal for removal will be given. The Supreme Court did provide a few clarity on this by stating that accepting this right does not imply that all elements of previous existence must be erased, as many have social ramifications. It basically proved that it cannot be deleted if the data is needed for: 

  • Exercising one’s right to free expression, expression, and information.
  • If it is required to comply with legal obligations.
  • If it is required for the completion of a task in the public interest or for the protection of public health.
  • If it is required for archival purposes in the public interest.

[1] Lisa Owings, The Right to Be Forgotten, 9 AKRON INTELL. PROP. J. 45 (2015)

[2] Ibid

[3] Justice K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161

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