Explained: Right to be forgotten

Introduction

In the digital era today, forgetting has become costly. The internet is a Pandora’s Box full of information and misinformation available to everyone at all times. With such possibilities of misuse, data regulation is a necessity. However it comes at the cost of placing reasonable restrictions on the freedom of getting and giving out information. The right to be forgotten has its roots in European jurisprudence which has recently found its way in Indian jurisprudence. The rationale behind such right is every individual should have control over their personal information and its regulation or removal from the internet.

Origins

The legal principle is originally supposed to have been derived from the French right to oblivion which provided for the opportunity to object to spread or removal of information regarding criminal pasts of individuals once they had served their sentence. The aim is to promote rehabilitation and social integration and as such incidents from the past should not prevent an individual from doing so[1]. The 2014 case of Google Spain[2] brought the right to be forgotten to light by the Court of Justice of the European Union. In this case a Spanish national, Mr. Mario Costeja Gonzalez, sought for removal of some information regarding him which was earlier published in a newspaper. He contended that searching up his name on the google search engine brought up those old articles which was already a settled issue and therefore, the removal of such articles must be permitted. The court ruled that google must remove the search results bringing up those article but the original newspaper would not have to do so. This was based on the reasoning that the fundamental right to privacy is far more important than commercial gains made by some corporation through such circulation of private information and in certain cases, even public interest to information should be restricted, thus validation the right to be forgotten. Currently, the statutory recognition of the right to be forgotten is envisaged in the General Data Protection Regulation and has been applied several times by the European court.

Indian context

The Data protection Bill of 2019 under Section 20 statutorily codifies the right to be forgotten in India which however is not currently available under the current data protection regime. According to Section 20, the person whose personal information is in question, also known as the data principle, has the right to restrict disclosure of his/her information by any data fiduciary or the person with who controls and stores the data. Certain pre-conditions have been established, the fulfillment of any one of these satisfies the right of the individual to enforce: (i) it is no longer necessary in the sense that its purpose has been fulfilled; or (ii) was made on the basis of the data principal’s consent and such consent has since been withdrawn; or (iii) publication of such data is in contradiction to the data protection act or any other law in force. Moreover, it has also been clarified by the Ministry of Electronics and Information Technology that the right to privacy envisaged under the fundamental right to life and liberty under art. 21 guarantees the right to be forgotten as well[3]. While it is a welcome change to provide relief to those whose damaging information about their personal life gets circulated on the internet, it is not absent of contentious issues with regards to the effects of its implementation and conflict with other rights.

While restricting the use of personal data by a corporate for commercial purposes, which would cause harm to the individual’s right to live with dignity, can be right justifiable, and records held by public authorities is a different story. Section 20 of the 2019 data protection bill ensures protection even against information held and processed by a public authority. That is, Section 35 to 40 of the Act deals with exemption regarding whom the restriction of the Act applies in instances where the processing of personal data which is necessary. This includes among other things, journalistic purpose and any other instances which the central government deems fit. Therefore, such restriction and limitation will not apply if the personal data is held by a media organization which is able to show that the processing of personal data is required for a journalistic purposes.

Right to privacy, the right to information and maintenance of judicial transparency

The Right to Information Act was implemented recognizing need for ensuring transparency on the working of and information withheld by public authorities in a democratic society. There is bound of conflict between right to forgotten included within the right to privacy and such right to information. Section 8 of the RTI act contains certain exemptions regarding the public’s right to access information from public authorities, which includes instances which affect the protection of sovereignty of the nation, trade secrets, intellectual property rights are involved or if there is a court order restricting such disclosure etc. to name a few. Article 8 (j) also talks about non-disclosure of information which is a personal data but does not explicitly use the term public data and instead uses the term ‘public information’. Such disclosure may only be permissible in instances where greater good of the public is at stake. In case recent case of Jorawer Singh Mundy vs. Union of India & Ors[4] The Delhi High Court is to adjudicate on striking the balance between protecting privacy and the public’s right to information and maintenance of judicial transparency by removal of court orders from online platforms. While the case if still pending for final adjudication the court prima facie was of the opinion that the petitioner is entitled to interim protection while the matter is still pending before the court. The above order of the Delhi HC is based on an earlier permanent injunction granted in the case of Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. & Ors[5] and Orissa HC’s opinion in the 2020 case of Subhranshu Rout v. State of Odisha[6] where the courts recognized the right to be forgotten and left alone.

Conclusion:

There aren’t a lot of case laws on this issue yet and the statutory Act containing the protection of right to be forgotten has not been implemented yet, making the current picture regarding this issue not so clear. If India is to follow the path of the Google Spain case, the implication would be that the original information would still be available on the particular website, but de-linked from search engines which would have it difficult to get to or access judgments and court orders. I am of the opinion that the person making such request, their intention and the surrounding circumstances of such request must also be taken into account before placing in kind of blanket restriction whether it is regarding a court judgement or something else. Moreover, the exemption power given to the central govt. also seems to be quite expansive under section 35 of the Data protection bill of 2019 in the sense that what is meant by protecting national sovereignty is quite subjective and needs to be narrowed down otherwise, it is possible that such protection clauses turn out to be redundant in value. Protection granted can both come as a relief to those aggrieved by it and those who choose to take advantage of it for their own benefit and detriment of others.


[1] Adrian Forde, ‘Implications of the right to be forgotten’ 2015 (18) forgotten’ Tulane Journal of Technology & Intellectual property  https://journals.tulane.edu/TIP/article/view/2652  accessed 19 December 2021

[2] Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González ,ILEC 060 (CJEU 2014)

[3] ‘Data protection Bill has provisions for right to be forgotten center tells HC’   (The Hindu, 17 December 2021)  https://www.thehindu.com/news/cities/Delhi/data-protection-bill-has-provisions-for-right-to-be-forgotten-centre-tells-hc/article37973230.ece accessed 19 December 2021

[4] W.P.(C) 3918/2021

[5] CS(OS) 642/2018

[6] BLAPL No.4592/2020

Introduction

In the digital era today, forgetting has become costly. The internet is a Pandora’s Box full of information and misinformation available to everyone at all times. With such possibilities of misuse, data regulation is a necessity. However it comes at the cost of placing reasonable restrictions on the freedom of getting and giving out information. The right to be forgotten has its roots in European jurisprudence which has recently found its way in Indian jurisprudence. The rationale behind such right is every individual should have control over their personal information and its regulation or removal from the internet.

Origins

The legal principle is originally supposed to have been derived from the French right to oblivion which provided for the opportunity to object to spread or removal of information regarding criminal pasts of individuals once they had served their sentence. The aim is to promote rehabilitation and social integration and as such incidents from the past should not prevent an individual from doing so[1]. The 2014 case of Google Spain[2] brought the right to be forgotten to light by the Court of Justice of the European Union. In this case a Spanish national, Mr. Mario Costeja Gonzalez, sought for removal of some information regarding him which was earlier published in a newspaper. He contended that searching up his name on the google search engine brought up those old articles which was already a settled issue and therefore, the removal of such articles must be permitted. The court ruled that google must remove the search results bringing up those article but the original newspaper would not have to do so. This was based on the reasoning that the fundamental right to privacy is far more important than commercial gains made by some corporation through such circulation of private information and in certain cases, even public interest to information should be restricted, thus validation the right to be forgotten. Currently, the statutory recognition of the right to be forgotten is envisaged in the General Data Protection Regulation and has been applied several times by the European court.

Indian context

The Data protection Bill of 2019 under Section 20 statutorily codifies the right to be forgotten in India which however is not currently available under the current data protection regime. According to Section 20, the person whose personal information is in question, also known as the data principle, has the right to restrict disclosure of his/her information by any data fiduciary or the person with who controls and stores the data. Certain pre-conditions have been established, the fulfillment of any one of these satisfies the right of the individual to enforce: (i) it is no longer necessary in the sense that its purpose has been fulfilled; or (ii) was made on the basis of the data principal’s consent and such consent has since been withdrawn; or (iii) publication of such data is in contradiction to the data protection act or any other law in force. Moreover, it has also been clarified by the Ministry of Electronics and Information Technology that the right to privacy envisaged under the fundamental right to life and liberty under art. 21 guarantees the right to be forgotten as well[3]. While it is a welcome change to provide relief to those whose damaging information about their personal life gets circulated on the internet, it is not absent of contentious issues with regards to the effects of its implementation and conflict with other rights.

While restricting the use of personal data by a corporate for commercial purposes, which would cause harm to the individual’s right to live with dignity, can be right justifiable, and records held by public authorities is a different story. Section 20 of the 2019 data protection bill ensures protection even against information held and processed by a public authority. That is, Section 35 to 40 of the Act deals with exemption regarding whom the restriction of the Act applies in instances where the processing of personal data which is necessary. This includes among other things, journalistic purpose and any other instances which the central government deems fit. Therefore, such restriction and limitation will not apply if the personal data is held by a media organization which is able to show that the processing of personal data is required for a journalistic purposes.

Right to privacy, the right to information and maintenance of judicial transparency

The Right to Information Act was implemented recognizing need for ensuring transparency on the working of and information withheld by public authorities in a democratic society. There is bound of conflict between right to forgotten included within the right to privacy and such right to information. Section 8 of the RTI act contains certain exemptions regarding the public’s right to access information from public authorities, which includes instances which affect the protection of sovereignty of the nation, trade secrets, intellectual property rights are involved or if there is a court order restricting such disclosure etc. to name a few. Article 8 (j) also talks about non-disclosure of information which is a personal data but does not explicitly use the term public data and instead uses the term ‘public information’. Such disclosure may only be permissible in instances where greater good of the public is at stake. In case recent case of Jorawer Singh Mundy vs. Union of India & Ors[4] The Delhi High Court is to adjudicate on striking the balance between protecting privacy and the public’s right to information and maintenance of judicial transparency by removal of court orders from online platforms. While the case if still pending for final adjudication the court prima facie was of the opinion that the petitioner is entitled to interim protection while the matter is still pending before the court. The above order of the Delhi HC is based on an earlier permanent injunction granted in the case of Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. & Ors[5] and Orissa HC’s opinion in the 2020 case of Subhranshu Rout v. State of Odisha[6] where the courts recognized the right to be forgotten and left alone.

Conclusion:

There aren’t a lot of case laws on this issue yet and the statutory Act containing the protection of right to be forgotten has not been implemented yet, making the current picture regarding this issue not so clear. If India is to follow the path of the Google Spain case, the implication would be that the original information would still be available on the particular website, but de-linked from search engines which would have it difficult to get to or access judgments and court orders. I am of the opinion that the person making such request, their intention and the surrounding circumstances of such request must also be taken into account before placing in kind of blanket restriction whether it is regarding a court judgement or something else. Moreover, the exemption power given to the central govt. also seems to be quite expansive under section 35 of the Data protection bill of 2019 in the sense that what is meant by protecting national sovereignty is quite subjective and needs to be narrowed down otherwise, it is possible that such protection clauses turn out to be redundant in value. Protection granted can both come as a relief to those aggrieved by it and those who choose to take advantage of it for their own benefit and detriment of others.


[1] Adrian Forde, ‘Implications of the right to be forgotten’ 2015 (18) forgotten’ Tulane Journal of Technology & Intellectual property  https://journals.tulane.edu/TIP/article/view/2652  accessed 19 December 2021

[2] Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González ,ILEC 060 (CJEU 2014)

[3] ‘Data protection Bill has provisions for right to be forgotten center tells HC’   (The Hindu, 17 December 2021)  https://www.thehindu.com/news/cities/Delhi/data-protection-bill-has-provisions-for-right-to-be-forgotten-centre-tells-hc/article37973230.ece accessed 19 December 2021

[4] W.P.(C) 3918/2021

[5] CS(OS) 642/2018

[6] BLAPL No.4592/2020

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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