Explained: Right to be forgotten

Introduction

In the digital era today, forgetting has become expensive. 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 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 into Indian jurisprudence. The rationale behind such right is that 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 an individual the opportunity to object to the spread of his/her personal information regarding criminal pasts once they had served their sentence. The aim is to promote rehabilitation and social integration. Incidents from the past should not prevent an individual from living a normal dignified life in the present[1]. The 2014 case of Google Spain[2] brought the right to be forgotten to light by a decision of the Court of Justice of the European Union. In this case a Spanish national, Mr. Mario Costeja Gonzalez, sought the 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 negatively affecting his reputation and causing harm to his business, even though it is a settled issue. 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 newspaper which originally published that article does not have to take it down from their website. 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. In certain cases, even public interest to information should be restricted, thus validating 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 in various cases.

Indian context

The Data protection Bill of 2019 under Section 20 statutorily codifies the right to be forgotten in India which is currently not available under the current data protection regime. According to Section 20, the data principle or the person whose wishes to remove their personal information, has the right to submit an application for the removal of such information held any data fiduciary or the person with who controls and stores the data. Certain pre-conditions have been envisaged and the fulfillment of any one of these conditions satisfies the right of an individual to enforce his right to be forgotten. These includes circumstances when: (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 an individual’s right to live with dignity can be justified, what about the records held by public authorities? Section 20 of the 2019 data protection bill ideally ensures protection even against information held and processed by a public authority. However, this is not to imply that exemption do not exists or that this is an absolute right.  Section 35 to 40 of the Act deals with exemptions in instances where the processing of personal data which is necessary. This includes among other things, research purposes, journalism and reporting and any other instances where 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 held by public authorities in a democratic society. There is bound to be a conflict between right to forgotten included within the right to privacy and the 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 ‘personal data’ and instead uses the term ‘personal 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 a 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 is still pending for final adjudication, the court prima facie was of the opinion that the petitioner is entitled to some interim protection. 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 to be indispensable. Everybody has the right to be 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 rationale 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 make it difficult to get to or access judgments and court orders. Therefore, maintaining transparency and accountability of public authorities but making access to them not as easy as it currently is. I am of the opinion that the person making such request, their intention, the surrounding circumstances and nature of the information that the individual wants to be restricted. All of these must be taken into account before placing in kind of blanket protection. 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. 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

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