Right to be forgotten: A Constitutional Dilemma

Introduction:

It has become impossible to truly forget material uploaded on the Internet in the age of the World Wide Web. While such data can be put to a variety of uses, it can be harmful to the data subject if it is used in ways that are hurtful to the data subject’s reputation or in ways that are contrary to the data subject’s intended use without their agreement. Unsolicited and unpermitted material circulating around the Internet can have a number of negative consequences. These negative consequences can range from brief embarrassment to social antagonism and melancholy. As a result, if privacy cannot be maintained from the start, it can be done by granting individuals the ability to retrospectively delete information that may be detrimental.

Right to be forgotten enables a person to request that private information be removed from the Internet. The concept has got acceptance in various countries outside of the United States, predominantly in the European Union. While the right is not recognized by Indian law, it has recently been ruled to be an integral aspect of the right to privacy by Indian courts. At least eight applications have been filed in the Delhi High Court, asking for the removal of private information from the Internet, as well as court records of previous convictions and processes, and news accounts from previous occurrences. So yet, just a few people have been able to gain that relief from the courts.

Countries having such law:

General Data Protection Regulation (GDPR) was adopted by EU in 2018. Article 17 of GDPR provides for the right to erasure of certain categories of personal data, including data that is no longer necessary, data for which consent has been withdrawn or processing has been objected to, personal data that has been unlawfully processed, and data for which there is a legal obligation for erasure. However, the regulations restrict the right to erasure in certain circumstances, such as for public health reasons, archiving purposes “in the public interest, scientific or historical research purposes, or statistical purposes in accordance,” and “the establishment, exercise, or defence of legal claims.”

In 2015, Russia passed a law allowing users to request that a search engine remove links to personal information if they are irrelevant, inaccurate, or in violation of the law. Turkey and Siberia recognise the right to be forgotten to some extent, and Spanish and English courts have decided on the issue.

Current legal framework in India:

The Information Technology Act, which was passed in the year 2000, governs India’s cyber system. It makes no mention of any right that a person may have to request that organisations remove his data and forget about him. However, once the European Union began to recognise it and there was continued controversy, particularly following the Justice Puttaswamy judgement in 2017, the Indian government decided to form a committee to discuss the country’s IT laws and data privacy policy. It was chaired by Justice BN Srikrishna, a former Supreme Court Judge, and the committee’s report recommended the draught Personal Data Protection (PDP) Bill, which is currently before the House of Parliament and is expected to be passed.

The PDP Bill is permission-centric, meaning that before personal data can be handled, the data subject must give legitimate authorization. It makes privacy by design a requirement for data processors to work properly. In contrast to the EU GDPR, the PDP Bill substitutes “data principles” and “data fiduciaries” for “data subjects” and “data controllers,” respectively.

The right to be forgotten, as well as the right against continuous disclosure, should be guaranteed to persons in relation to the scope of their personal information that is disclosed on the internet, according to this draftt Bill. People should have the right to demand that their current existence be divorced from any deceptive or embarrassing events that may have occurred in the past, especially if they are irrelevant in the present. Under Section 27 of the PDP Bill, the data principal has the right to “restrict, erase, or amend the dissemination of personal data on the internet” against the data fiduciary. According to Section 27(2) of the PDP Bill, the Data Protection Authority, which will be established as an autonomous regulatory authority, will be in charge of monitoring and enforcing these requirements. The right to be forgotten, on the other hand, is not absolute. According to Section 62 of the PDP Bill, the union government is required to designate an Adjudicating Officer to oversee all requests for personal data disclosure or deletion.

Judicial precedents recognizing Right to be Forgotten:

Despite the fact that the ‘Right to be Forgotten’ is not included in the Sensitive Personal Data Information (SPDI) Rules, there are certain court precedents in India. For the first time, the Orissa High Court, an Indian constitutional court, raised the issue of an individual’s right to be forgotten online, arguing that Article 21 of the Indian Constitution, which deals with Right to Life and Personal Liberty, should be enforced as a remedy for victims whose compromising information was made public online.

For the first time in 2014, an Indian person used the EU Court’s decision in Google v. Spain[i] to ask an Indian website to remove particular links as part of his right to be forgotten request. However, the website Medianama.com declined to comply with the request, claiming that the judgement was not enforceable on India and that under current IT standards, there is no option for requesting deletion.

Justice Sanjay Kishan Kaul of the Supreme Court of India held in Justice Puttaswamy v. Union of India[ii] that individuals have the freedom to put and remove data from internet sources in both tangible and intangible forms. “An individual’s right to exercise control over his personal data and to be able to regulate his or her own life would equally embrace his or her right to control his or her existence on the Internet,” Kaul said.

Based on the Supreme Court’s ruling in K.S. Puttaswamy (Privacy Judgment), the Orissa High Court stated that “…there is no statute which acknowledges right to be forgotten, but it is in sync with the right to privacy.”

In Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd[iii]., the Delhi High Court acknowledged the “right to be forgotten” and the “right to be left alone” as important parts of an individual’s existence.

Conclusion:

The right to be forgotten is a legal right that allows individuals to have their personal information removed from the internet, which is a public space. However, by using this privilege, one is restricting the public’s right to information, which is protected under the First Amendment. Simply said, if this right is widely claimed, the search query results will progressively disappear. As a result, on a case-by-case basis, each of these rights must be balanced. The law provides a comprehensive framework for search engines to handle claims for the Right to be Forgotten. This will ensure that the state or a firm has a limited role in an individual’s personal choices. The law provides a comprehensive framework for search engines to handle claims for the Right to be Forgotten. This will ensure that the state or a firm has a limited role in an individual’s personal choices.

After all, today’s Internet is so powerful that it can influence people’s lives and ideas in ways that they shouldn’t be bound by their history. People should be able to move forward from their discreditable criminal past.

References:

  1. Ramit Mehta and Tejash Bhandari, Right to be forgotten: A critical and comparative analysis, The Daily Guardian,  https://thedailyguardian.com/right-to-be-forgotten-a-critical-and-comparative-analysis/
  2. Anonymous, EVERYTHING YOU NEED TO KNOW ABOUT  “RIGHT TO BE FORGOTTEN”, IAS Gyaan blog, https://www.iasgyan.in/blogs/everything-you-need-to-know-about-right-to-be-forgotten
  3. Parul Chaudhary, Right to be forgotten and the Constitutional dilemma, Blog iPleaders, https://blog.ipleaders.in/right-forgotten-constitutional-dilemma/
  4. Sofi Ahsan, Explained | Right to be forgotten: govt position, court rulings, and laws elsewhere, Indian express, https://indianexpress.com/article/explained/explained-right-to-be-forgotten-7691766/#:~:text=What%20is%20the%20right%20to,private%20information%20from%20the%20Internet.&text=While%20the%20right%20is%20not,of%20the%20right%20to%20privacy.

[i] Google Spain v. AEPD & Mario Costeja, C‑131/12.

[ii] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. , AIR 2017 SC 4161.

[iii] Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd, (2019) 175 DRJ 660.

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