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Right To Be Forgotten: An Overview

In today's world, where technology has pierced into almost every aspect of our lives, information can easily be accessed on the internet. The internet has taken the world by a storm and the tides just flow in its favor and do not seem to slow down. Personal information is increasingly stored on the internet for an indefinite period of time. This changes the norm from forgetting-by-default, as experienced in the human brain, to a norm of remembering-by-default experienced through the wonders of technology.

The ambit of digitization has enabled the storage of almost all sorts of information on the internet. There is an excess of information available online which, in many cases, is a blessing for the people, however, on the other hand, it also acts as a curse for some. There arise certain instances where people do not want their whereabouts to be made a part of the public domain on various social media websites. And rightly so, the privacy of the citizens of a country should be well respected and not violated at all.

The loss of privacy needs to be conserved which gave rise to the Right to be Forgotten asit provides people to have the civil right to request for the removal of any personal information from the Internet.

"Right to be forgotten" is a relatively new term which is finding its roots in the current legal system with great implication for privacy, freedom of expression and internet policies. If you live in a country that recognizes right to be forgotten then you can easily request to remove data that's online if it has become irrelevant in the present time though it comes with certain restrictions.

The "Right to be forgotten" in simple sense means that we have a right to have our information that is publically available to the people at large get removed from the different sources such a accessed online, engines, libraries, blogs or any other pub[1]like platform, once the personal data in the dispute is no longer required or relevant. But it is independent of the right of oblivion or right to erasure. This right comes within the umbrella of the intellectual privacy available to ever human.

Though it is a new concept, it has attained a great importance in India, as we can see in the Personal Data Protection Bill, 2019 (though currently it has been withdrawn).

Evolution Of "Right to be Forgotten"

The origin of this right can be traced back to the French jurisprudence on the droit a loubli also known as 'Right to oblivion' in 2010. This right favored the convicted criminals, who had completed their crimes and their criminal life. The concept of this right was brought up by an incident which happened in the year 1998 which led to the formation of this right in the European Union. A Spaniard named Mario Costeja Gonz'lez ran into financial difficulties and was in severe need of funds.

So he advertised his property in the newspaper for auction and that article ended up on the internet by chance. As a result Mr. Gonz was never forgotten by the internet. Even after settling his financial issue, whenever someone searched about him the bankruptcy showed up which had a severe damage to his reputation and he had difficulty finding jobs as it imparted a bad reputation on the employers. Thus, he took the matter to the court. In 2010, Mr. Gonzalez filed case regarding this issue which is popularly known as Google Spain v. Gonzalez[2].

The European Court of Justice ruled against Google and said that the European citizens have the right to remove their information from the internet under certain circumstances such as when the information has become irrelevant and the search engine is obliged to do so.

In May 2018, EU gave this right a status by providing it in the Article 17 of General Data Protection Regulation. Article 17 of GDPR provides that "the data subject has the right to request erasure of personal data related to him on any one of a number of grounds including non-compliance with article 6.1 (lawfulness) that includes a case (f) where the legitimate interests of the controller is overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data".[3]

But in 2019, the courts ruled that the right to be forgotten does not apply beyond Europe and only European citizens can avail it.

Many other countries have given recognition to this right such as USA, Argentina and India. The current legal framework that prevails in India in relation to this right had been discussed below and many case laws that are relevant are also mentioned.

Recognizing the Right to be Forgotten in India

India, at present does not have any statutory provision that provides the citizens with the right to be forgotten. But a new wave to reform took place in the modern world and there was mention of the right to be forgotten in the new Personal Data Protection Bill, 2019 that was drafted by B.N. Srikrishana committee. To state again this right means that every data subject (individual) has the right to remove he contents they post online if the content is irrelevant or no longer severs the purpose for which it was created.[4]

In the current scenario, this right does not have any status as the fundamental right and the matter has been left to the judicial interpretations by the different high courts of the country. But these courts do not have a single view on this matter as in different high courts the matter has been decided differently and the courts have given contrasting judgments

Significant Judicial Decisions:

  1. Dharamraj Bhanushankar Dave v. State of Gujarat [5]
    was that the respondents published a few offensive articles against Zulfiqar during the #me too campaign as they had received certain anonymous allegations against him. The plaintiff requested the deletion of such articles as they harmed This is the first case that comes in our mind when we think of a case related to right to be forgotten.

    It is a case of 2017. The petitioner approached the high court under the article 226 of the constitution requesting restraint on the publication of orders and judgments of all the courts all over the internet. He pleaded to obtain an appropriate writ against it. It posed problems when it came to the privacy of the petitioner and also affected his personal and professional life. The main issue of this case was whether or not the judgment could be published on the internet.

    The high court said that a judgment that is in appeal was a part of the proceedings and mere publication does not amount to the same as the word "reportable". Thus, the judgment was disposed off as there was no such law that to support the claims of the petitioner. Through this judgment we can see the times when the courts have been asked to intervene by parties to have information being removed from the search engines.
     
  2. Vasunathan v. Registrar General [6]
    In contrast to the Gujarat high court, the Karnataka high court ruled in favor of the petitioner and removed the name of the petitioner's daughter from the case title as it could lead to defamation of her reputation. And while doing so the court observed that "This is in line with the trend in western countries of the Right to Be Forgotten" in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned."

    The court directed the registry to do the appropriate thing. But an interesting thing is that the court itself restrained from making any changes on the high court website and the certified copy of the judgment.
     
  3. Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors[7]
    This case is related to the Delhi high court. The issue his reputation. The court held that while the lawsuit is pending in the court and there is no judgment regarding it, the site (quint.com) had to delete and not republish those pieces. The court also acknowledged the plaintiff's right to his privacy and reputation, both of which include the right to be left alone and right to be forgotten. From this judgment we can see that the court recognized the right to be forgotten.
     
  4. Jorawar Singh Mundy v. Union of India [8]
    The latest case that is related to this right is of Jorawar Singh Mundy. In this case Jorawar who is an American citizen of Indian descent was charged for narcotics abuse when he came to India in 2009. But he was later acquitted. But several sites reported that case on the internet. And recently Jorawar filed a writ petition in the Delhi high court for the removal of this information online as it was irrelevant.

    The court ruled in the favor of the petitioner and directed the sites to remove the judgment from the internet. The court stated that currently there is no statutory provision granting this right but they relied on the precedent of European Union to give this judgment. They also stated that the Right to privacy and Right to be forgotten go hand in hand,

    From the above judgments we can see that the courts have recognized the right to be forgotten to some extent by giving the judgment in the favor of the petitioner. Even in the landmark case of K.S. Puttaswamy v. Union of India [9] the SC recognized this right as Right to life under Article 21. This gave right to be forgotten the status of an evolving fundamental right.
     

Personal Data Protection Bill, 2019

The current legal system of India that governs data protection on the internet is the Information Technology Act, 2000. But even in this act there is no section that recognizes an individual's "Right to be forgotten". But as the world progresses to be more digitized, a bill was proposed relating to the protection of personal data of individual's which also talked about recognizing this right to be forgotten. Though this bill could not make its way to becoming an act and was withdrawn beforehand, but it still is a progress in the current domain.

This bill was framed under the Srikrishna Committee which was chaired by B.N. Srikrishna who is a retired justice of the Supreme Court. The aim of this committee was to provide a data privacy framework which can be enforced knowing the other existing laws in mind.

The bill that was drafted by the committee is quite similar to its European counterpart known as the GDPR in relation to its impact on the citizens. The White Paper on Data Protection hint that the inspiration behind the inclusion of the right to be forgotten in the European Union and in its Provisional views and also specifically discusses the Google Spain[10] judgment.

When we talk about the "right to be forgotten" it is mentioned in Clause 20 under Chapter V of the bill which gave an individual the right to restrict or prevent the continuing discloser of their personal data.

In Clause 20 (1): The data principal shall have the right to restrict or prevent the continuing discloser of their personal data by a data fiduciary where this data is [11]:
  1. Has served the purpose for which it was collected or is no longer necessary for the purpose;
  2. Was made with the consent of the data principal under section 11 and such consent has since been withdrawn; or
  3. Was made contrary to the provisions of this act or any other law for the time being in force.
When we look deeper into the clauses we see that in clause there should be an Adjudicating Officer to whom the application should be submitted by the data principal and there are some prescriptions given considering which the officer should issue his order regarding the matter.

Not only this have had we found many other sections which are either directly or to some extent similar to this right to be forgotten. Such as Section 18[12] which mentions the "Right of Erasure" which every citizen should have. We also have section 19 which has wording such that we can get hints that it is related to the right to be forgotten.

Similar Right In Other Countries:
  1. European Union
    When we talk about the EU they have made tremendous growth in this sense. The Data Protection Directive was adopted way back in 1995 in order to regulate the citizen's personal data. It played an important role in the EU's privacy as well as human rights law. The country has witnessed many things in order to what it is today in terms of having a right to be forgotten.

    In April 2016, the country adopted The General Data Protection Regulation (GDPR) which superseded the previous 1995 directive. When we look deeper into GDPR we find that Article 17 provides that the data subject has the right to request erasure of personal data related to them on any one of a number of grounds, that includes non-compliance with Article 6(1)[13]. Thus we can say that GDPR's Article 17 has outlined the circumstances under which the citizens of the European Union can get to exercise their "right to be forgotten".
     
  2. United States of America
    Unlike the citizens of the European Union, the American citizens do not enjoy such a right. Even though we can find instances in the court rulings that support this right there is no hard and fast regulation that backs it up. But The State of New York has drafted a bill know as "Right to be forgotten" Bill in its State Assembly, which it named "n act to amend the civil rights law and the civil practice law and rules, in relation to creating the right to be forgotten."

Conclusion
"Right to be forgotten" a right that has its root in European Union's "Google Spain" case but it is still an emerging and evolving right in India. The Personal Data Protection Bill, 2019 was an extremely big step in the recognizing this right, but to our disappointment it has been withdrawal as of now. As mentioned in the above sections, the courts don't have a particular perspective on how to recognize this right and have given contrasting judgments through the years, thus it is a need of the hour to have such a right which allows the citizens to get their personal information removed from the internet.

Though the critics mention that it clashes with a few fundamental rights and should not find a place in the current legal framework that India has, but the author of this paper believes that this right should come into existence by striking a balance between the right to be forgotten and the rights that it clashes with and this should be done with extreme care by the Parliament and the Supreme court. Data is a really precious thing in today's world and should to be left uncontrolled.

Everyone has their own amount of bad times and everyone makes mistakes and if they have been acquitted of that mistake they should have a right to be forgotten , so that the people in the society don't see them in bad light and accept them in good light. Thus, the "right to be forgotten" should be a valid right in India.

End-Notes:
  1. Google Spain, 2014 E.C.R. 317
  2. GDPR, 2016, art. 17.
  3. The Personal Data Protection Bill 2019
  4. Dharamraj Bhanushankar Dave v. State of Gujarat, 2017 SCC OnLine Guj 2493
  5. Vasunathan v. Registrar General, (2017) SCC Online Kar 424
  6. Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132
  7. Jorawer Singh Mundy v. Union of India, 2021 SCC OnLine Del 2306
  8. Justice K.S. Puttuswamy (Retd.) , (2017) 10 SCC 1
  9. Google Spain, 2014 E.C.R. 317
  10. The Personal Data Protection Bill, 2019
  11. The Personal Data Protection Bill, 2019
  12. GDPR, 2016 art. 17
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