Author: Ritika Gupta, studying law at Institute of Law, Kurukshetra University Kurukshetra.
This article deals with the right to be forgotten which is a right under the right to privacy. This article delves in the detail about the origin of the right to be forgotten in India and it’s evolution with the landmark judgements by the judiciary.
*Introduction:
As we are in the era of the internet where our data is available on the internet. So, it is important for us to secure it. Many countries have already taken steps on the data protection way before like in the Europe (General Data Protection Regulation). But in India, this issue of privacy and data protection came into limelight in the case of Justice K.S. Puttaswamy V. Union of India where the Supreme Court recognised right to privacy as the fundamental right under the Article 21 of the Indian Constitution. The Standing and Parliamentary Committees also stated the need of dedicated legislation on data protection and privacy in the reports. In 2023, the Digital Personal Data Protection Act was passed which delves into the area of right to be forgotten. Right to be forgotten is also called the right to erasure.
*Meaning:
The Right to be forgotten means the right that is given to the individuals to have their private information removed or erased from the internet, websites or other search engines which is no longer necessary or relevant and under certain circumstances.
*Provision on the Right to be Forgotten in India:
Digital Personal Data Protection Act, (2023)
The Digital Personal Data Protection Act was passed by the Indian Parliament in August 2023. This act was recommended by the B.N. Srikrishna Committee in 2018. In this act, there are many sections which deals with the ‘Right to be Forgotten’ that are mentioned below:
1. Section 9: Section 9 of this act states that the data fiduciary shall not kept any personal data beyond the time period for which it is necessary to serve the purpose for which it is published or processed. Section 9(1) also provides the exception that if it is necessary under the legislation to kept the data for longer period then it can be kept under some conditions. It is also mentioned in the Section 9 that data fiduciary regularly need to access and review the data in its possession to decide if the data is required or not.
2. Section 18: Section 18(d) of this act provides that every citizen has right of erase the personal data which is no longer required for the purpose for which it was processed.
3. Section 20(1): It states the grounds on which the right to erasure or right to be forgotten can be claimed that are:
• when the data has served the purpose for which it was collected or when it is no longer necessary.
• when the data was published under the consent of the data principal and such consent has since been withdrawn.
• when the data disclosure was made contrary to the provisions of this act or any other law for the time being in force.
4. Section 36(b): This clause states that the right to limit disclosure of personal data does not apply in which the particular data is required to enforce a lawful authority or other same purposes.
*Basis of granting Right to be Forgotten:
The Data fiduciary and officer has to take various things into account while passing an order in favour of the right to be forgotten which are as follows;
• the individual role in society.
• the sensitivity of the private information that is available.
• the public’s importance on the information that is available.
• the essence of the release of the information.
• the extent of the availability that was sought to be restricted or avoided.
*Case Laws on Right to be Forgotten:
1. Jorawar Singh Mundy V. Union of India (2021)
Facts of the Case
In this case, the petitioner an American citizen had visited India in 2009. A case was filed against that person under the Narcotics Drugs Act which is a serious crime. In 2011, trail court acquitted him of all the charges. An appeal was made by the State at Delhi High court against the acquittal but the high court judge affirmed jis acquittal. After returning to the United States, the petitioner studied law applied for job, but the available information about his case became hindrance in his job appointment because while checking the background his information was easily available throughout many websites. Therefore, he sent notice to Goggle India, Private Ltd., Goggle LLC, Indian Kanoon and vLex. But only vLex erase the data fom the website. As a result, he filed a writ petition before the Delhi High Court, requesting the judgement to be deleted from all the websites by respecting his right to privacy under Article 21 of the Indian Constitution.
Issue Before the Court
whether the petitioner right to privacy is important or public right to information is important and if both are important then how to make balance between the both?
Court Judgement
The Court reached at the conclusion that the right to be forgotten is a part of right to privacy. The Court decision was based on the Supreme Court’s decision in K.S. Puttaswamy V. Union of India judgement which recognized right to privacy under the Article 21 right to life and personal liberty and Zulfiqar Ahman Khan Case. The Court passed an order to delete all the information from the websites available against the petitioner right to privacy and held that petitioner’s right to privacy is more important than the right to information and expression.
2. Subhranshu Rout V. State of Odisha
In this case, the unpleasant photographs of a girl was posted on the facebook by Rout and many charges were put on him, The Odisha High Court while examining the right to be forgotten as a remedy to be given to the victims of sexually explicit pictures stated that the information in the public domain is like the toothpaste, once it is out of the tube it can’t be put back in and once the information is in the public domain it will never go away. The court recognized the right to be forgotten in this case and also stated that their is need to protect the privacy of individuals in the era of the internet.
3. Zulfiqar Ahman Khan V. M/S Quintillion Business Media and Ors (2018)
In this case, the Delhi High Court recognized a petitioner’s right to privacy under Article 21 as the petitioner approached the High Court pleading for the removal of articles published on the popular news publishing website – The Quint. In the articles, it was mentioned that the petitioner had committed sexual misconduct against certain individuals. The Court recognized the petitioner’s right to privacy and ordered the publisher to delete the content from the website.
4. Dharamraj Bhanushankar Dave V. State of Gujarat (2017)
In this case, the petitioner had been charged with the criminal conspiracy, murder and kidnapping among others and was acquitted by the Sessions Court, which was further supported by the Division Bench of the Gujarat High Court. The petitioner had claimed that since the judgement was non – reportable, respondent should be banned from publishing it on internet because it would jeopardize the petitioner’s personal and professional life. But the Court in this case held that publication did not violate Article 21 of the Indian Constitution and the petitioner had presented no legal basis to prevent from publishing the judgement.
5. Sredharan T V. State of Kerala
In this case, a writ petition was filed for protection of the Right to privacy under Article 21 of the Constitution of India and petitioner was seeking directions from the court to remove the name and personal information of the rape victim from the search engines in order to protect her identity. The court recognised the Right to be forgotten as a part of right to privacy and ordered the search engines to remove the name of the petitioner from the websites on which it was available.
6. X. V. Registrar General
The Karnataka High Court recognised the Right to be Forgotten. In this case a heinous crime committed against a women. The Court stated that if the right to be forgotten is not recognised in matters like this one, any person can misuse the data and outrage the modesty of the woman.
*Criticism of the Right to be Forgotten:
• Violation of Freedom of Speech and Expression: The Constitution of the India guarantees right of freedom of speech and expression under the Article 19. The critics says that if the right to be Forgotten is given to the persons due their privacy then it will infringe the right of content creators and person that publish on websites guaranteed under Article 19(1)(a).
• Danger to Media: Media is considered as the fourth pillar of the democracy. If the Right to be forgotten is executed then it will impose certain restrictions on the media to not disclose the history of any individual.
• Restriction on Right to Information: The critics also argued that the right to be forgotten also affects the right to information of the public as it would not provide past information about the particular individual.
*Conclusion
In the end, it can be concluded that right to be forgotten is an evolving right in India. Although this right is overlapping with the some other fundamental rights but this right is very important in this digital era as data is the most precious resource that should not be left uncontrolled on internet. But, their is need to make provisions for balancing the right to be forgotten and other rights like right to information and expression.
*Frequently Asked Questions:
1. Is the Right to be Forgotten available in other countries?
Yes, the right to be Forgotten is available in many countries like Europe, USA, Russia, UK, Spain etc.
2. What are merits of Right to be Forgotten?
There are many merits like:
•It gives an opportunity to person for fresh starting.
•It can help to remove illegally uploaded data or content by the third party.
3. What are the cons of right to be forgotten?
There are many cons like:
•It leads to lack in transparency as the information is deleted by this right.
•It also leads to restriction on media.
•The public right to information can also curtailed.
4. What is the judgement under the Goggle V. Spain case?
In this case, the European Court of Justice ruled that Europe citizens have the right to request the removal of personal information which is no longer necessary or relevant from the commercial search engines like Goggle.
*References: