By Shanthini S R
In the era of the digitized world, the information once available on the Internet is omnipresent and static. One can access every piece of information relating to a person or place with a single click. Now this has turned out to be a necessity. This privilege has pros and cons, as there are two sides to a coin. The Right to be forgotten can be viewed as a remedy to this problem. The Right to be forgotten is an evolving concept in the present world these days. It empowers people to have control over the available information in the public domain via search engines to remove information about them from the Internet. It is open to the individual over their data to be removed from all the platforms under exceptional circumstances. The Right to be let alone is a right that evolves from the Right to Privacy recognized under Article 21 of the Constitution and is a developing right. The Data Protection Bill introduced in 2019 put forward a new right to protect personal data, i.e., the "Right to be Forgotten (RTBS)." It gained importance after the judgment of the Court of Justice of the European Union in the Google Spain Case and the General Data Protection Regulation (GDPR). Also, one should remember that everyone will have good and bad times. Today even though an accused is acquitted, no one accepts him. It should always be borne in mind that the very purpose of punishment is to transform the criminal into a law-abiding citizen. Here comes the role of the "Right to be forgotten "so that no one can question his dignity in the future. This Right has been recognized globally by the European Union, Britain, and the United States of America.
KEYWORDS: RTBS, Data Protection Bill, GDPR, Article 21, Google Spain Case
In the era of the digitized world, the information once available on the Internet is omnipresent and static. One can access every piece of information relating to a person or place in a single click. Now this has turned out to be a necessity. This privilege has pros and cons, as there are two sides to a coin. The advancement of the Internet has given us access to the most personal details of persons-both good and evil. Things seem to go public more often, and our privacy is tumbling daily. In today's time of Google, Facebook, Twitter, and other social media sites, an individual's information is no longer confined to government documents. They are just a search away, and their details are easily accessible over the net. The Right to be Forgotten is a remedy to this problem. It is an evolving concept in the present world these days. It empowers people to have control over the available information in the public domain via search engines to remove information about them from the Internet.
BACKGROUND OF THE RIGHT TO BE FORGOTTEN
The Right to be forgotten, more commonly known as the Right to erasure, is embedded in Article 17 of the General Data Protection Regulation, 2016[1]. This concept can be traced to French Law which recognizes "le droit a la oubli," which means the Right to oblivion. This Right allows a person convicted and served his time to object to the publication of the facts about his conviction and incarceration. This paved way for the development of the said Right to incorporate into the Data Protection Directive, 1995 of the European Union. In the spoken directives, a person is permitted to request the concerned authority to delete such data available on the internet "due to the uncompleted or inaccurate nature of the information."
Around two decades later, the Court of the European Union (CJEU), in the landmark judgment of Google Spain SL and Google Inc. v. Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez [2], held that the European Union citizens have the Right to be forgotten and established that the personal privacy outweighed the interest in free data flow in the European Union. In 1998, Mario Costeja Gonzalez, a Spaniard, required funds as he was experiencing financial difficulties. As a result, he advertised in a newspaper, which ended up on the Internet by chance. Unfortunately, Mr. Gonzales was not forgotten by the Internet. Due to this the news about the sale was still on Google and everyone looking him up assumed he was bankrupt. Severe damage was caused to his reputation, which prompted him to take the matter to Court. This case gave birth to the "right to be forgotten." The European Court of Justice ruled against the search engine giant Google declaring that E.U. residents could have personal information deleted or removed from search results under certain situations. As a result of this decision, the said Right was paved into the G.D.P. Regulations, 2016. The Google Spain judgment was a landmark decision wherein the E.C.J. ruled that the "right to be forgotten" was a facet of the Right to privacy.
On May 2016, the European Council and Parliament enacted the GDPR(General Data Protection Regulation) to provide a uniform framework for the RTBF(right to erasure) and harmonize data protection across the European Union.
RIGHT TO BE FORGOTTEN: NEED OF THE HOUR
The dire need for the Right to be forgotten was observed for kaleidoscopic reasons. The first one is the main requirement of regulating the world wide web. This Right is thus considered a zealot against the proliferating information access on the public platform and the boom in digital openness, which is thwarted in the lives of the common public[3]. The immediate need for the Right is also observed as it is an extending arm to digital privacy rights. Without a data protection regulation restricting the fundamental Right to delete useless and private data from the online space, the "Right to be forgotten" has attracted significant attention in India.
RIGHT TO BE FORGOTTEN VS RIGHT TO PRIVACY
The Hohfeldian theory states that for each Right granted to an individual, there is the simultaneous duty of another individual. The Right to privacy is a fundamental right widely applicable worldwide and is also hit by the Hohfeldian theory. The Right to privacy is attributed to the Right to freedom of speech and expression and is attributed to human dignity. Therefore, a person's privacy creates an implicit duty on another person to safeguard and preserve the privacy. This implicit duty eventually creates a dire need for the Right to be forgotten. Both rights are polar and contradictory to each other. Both rights have their roots in impeding the spill of private information and data.
The support for this Right is observed in the judgment of K.S Puttuswamy v Union of India[4].
DEVELOPMENT OF SUCH A RIGHT IN INDIA
In India, currently, there is no statutory provision concerning the Right to be Forgotten or the Right to erasure. But India presented the New Personal Data Protection Bill in 2018[5], which envisages many modifications regarding data handling and security privileges of individuals. Later, the Parliament passed the Information Technology Act 2000[6] to deal with the matter regarding the misuse of technology. It is the elementary Legislation governing cybercrime and e-commerce. According to Section 43 of the Information Technology Act of 2000, organizations with sensitive personal data and failing to maintain proper security to safeguard those data must pay damages to the affected person. Even though not expressly mentioned in the notification, it provides procedures to file complaints with the designated Grievance Officer. To tackle the inadequacy of laws, The Personal Data Protection Bill,2019[7], under the guidance of the B.N. Srikrishna Committee, was introduced, and the Right to be forgotten was laid down under section 20 of the bill. It provides that the Right to prohibit the continuing disclosure of personal data can be requested on three grounds. They are:
· Has it served the purpose for which it was gathered, or is it no longer necessary?
· Was made with the consent of the data principal under section 11, and the said consent has been withdrawn.
· Was made contrary to the provisions of the Act or any other law for the time being in force.
The committee also pointed out that the consent obtained must be explicit or clear, and it should be fit for being pulled back as effectively as given.
The first case that dealt with this Right was Dharmaraj Bhanushankar Dave v. State of Gujarat[8]. The Petitioner filed the suit to remove a published judgment in which he had been acquitted. The Court did not grant an order in favor of the Petitioner as he could not point out that his rights had been violated. Here the Petitioner could not seek any remedy because of the absence of a legal framework.
Justice K.S Puttuswamy (Retd.) and Anr. V. Union of India[9] exists as the binding precedent on the judiciary concerning privacy and all such aspects. While looking into the judgment, one can see that the Hon'ble Bench has recognized the existence of the "Right to be Forgotten" as one of the facets of the Right to privacy but chose not to enforce it as a standalone fundamental right. The SC also observed that the said Right could not be exercised when the required information in question was necessary for (1) exercising the Right of freedom of expression and information; (2) compliance with legal obligations ;(3) performance of a task carried out in public interest or public health (4) scientific/historical requirements ;(5) establishment of legal claims.
In Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd and others[10], the Petitioner demanded the removal of the articles about him from the News website "The Quint." The Delhi High Court held that the Right to be Forgotten and left alone is integral to a person's existence.
In Civil writ petition No 9478 of 2016[11], the Kerala High Court ruled in favor of the Right to be Forgotten by ordering the removal of the name of the rape victim from the online Legal database Indian Kanoon.
In Sri Vasunathan v. The Registrar General & Ors[12], the Petitioner filed a petition to remove his daughter's name from the cause title as it would cause harm to her reputation. The Court ordered that the name be redacted and held in favor of the Petitioner. The decision indicated that the Right to be forgotten is a fundamental right under the Right to privacy.
In Prem Shankar Shukla v. Delhi Administration[13], Justice Krishna Iyer, speaking for a three-judge Bench, held that "..the guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 14,19 and 21 spring into action when we realize that to manacle man is more than to mortify him, it is to dehumanize him and therefore to violate his very personhood, too often using the mask of dangerousness and security.."
In Jorawar Singh Mundy v. Union of India[14], Jorawar, an American citizen of Indian descent, was charged with narcotics abuse in 2009 when he came to India .later on, he was acquitted. But several sites reported the case on the Internet. He filed a petition for the removal of the said information. The Hon'ble Court ordered the removal of the judgment from the Internet. The Court relied on the precedent of the European Union to decide this case. Moreover, the Court observed that the Right to privacy and the Right to be forgotten go hand in hand.
In the case of Kharak Singh v. State of U.P. [15], the Hon'ble Court held that the Right to Life includes personal liberty and thus the Right to privacy culled from Article 21 of the Indian Constitution[16].
In Subhranshu Rout @ Gugul v. State of Odisha[17], the accused raped the victim and uploaded her intimate scenes on Facebook. The Hon'ble Court held that "no person, much less women, would want to display grey shades of her character. In most cases, the women are victims, and hence it is their right to enforce the right to be forgotten as a "right in rem" Also, capturing images with consent cannot be justified for the misuse of such content.
GLOBAL RECOGNITION OF THE RIGHT TO BE FORGOTTEN
European Union
The E.U. has witnessed several maneuvers to establish the 'Right to be forgotten' in a consolidated form. The Data Protection Directive was a European Union adopted in 1995 to regulate the processing of personal data within the European Union[18]. Subsequently, GDPR (The General Data Protection Regulation was adopted in April 2016, superseding the 1995 Data Protection Directive. Article 17 has outlined the situations under which E.U. citizens can exercise their 'Right to be forgotten' or 'Right to erasure.'
Britain
In Equustek Solutions Inc v Morgan Jack and others[19], the British Columbia Supreme Court issued an injunction requiring Google to de–index certain websites from its search results. Before initiating legal proceedings, the plaintiff had requested Google's help blocking specific URLs.
United States of America
The U.S.A. has a well-developed Legal system that protects the privacy of its people. The State of New York became the first to introduce a draft 'Right to Protection bill' in its State Assembly, which was titled "An act to amend the Civil rights law and the civil practice law and rules, concerning creating the 'Right to be forgotten Act[20]'.
CHALLENGES ASSOCIATED WITH RIGHT TO BE FORGOTTEN
Harm to Journalism
If the Right to be forgotten is implemented, it can cause harm to the journalist in imparting information to the public. This will create a situation of chaos in the print and media industry as they await the judicial officer's decision.
Conflicting with the Freedom of Expression
The removal of online content might affect the citizen's freedom of expression. This will result in an obstruction in expressing their views by way of articles, books, the Internet, etc.
The Right to be Forgotten can't be applied in criminal activity against a country[21].
This Right also becomes a stumbling block in the easement of carrying out business activities and meeting the identification practices in law as conducting the practice of KYC(Know your Customer).
Legal challenge
The Right to be Forgotten may conflict with matters of public records. It cannot be extended to official records, especially court records, as this would undermine public confidence in the justice system in the long run.
Impact on Freedom of Speech
Right, to be Forgotten presents a massive issue concerning the freedom of speech in the upcoming time. When a person's past actions are posted on a public platform, the public can easily access and judge a person based on that.
The right raises fingers on the integrity and neutrality of the search engines.
Alongside affecting the principle of accountability.
The expenses of implementing the Rights by search engines shall be huge.
The content can still be located even though it has been removed via other search results or data controllers.
Moreover, the mass deletion of data using search engines would result in a severe chilling effect crisis on the Internet.
ADVANTAGES TO THE RIGHT TO BE FORGOTTEN
This Right can give essential consolation of security and plays a significant role in developing an individual.
Allows the individuals to get a sense of responsibility with their data and gives them more command over their improved characters.
Precious chance to give individuals a fresh start throughout everyday life.
Undesirable data can be removed from general visibility.
Individuals should have a right to control their personal information and identity in the digital age.
The Right to be forgotten empowers individuals to regain their digital lives.
It can provide significant reassurance of safety and can play an essential role in improving organization and independence.
CONCLUSION
It is said that the Internet never forgets; it has an unforgiving memory. Data is a precious resource in the digital era that shouldn't be left unmanaged. A person's mistake in his personal life becomes and remains in the public domain for generations to come. Fleeting and frivolous as social media might appear, the personal information, once posted, is hard to wipe away even afterward when it might seem, and the personal information, once posted, is hard to wipe away even afterward when it might have lost relevance or context. The present scenario demands the protection of the data of an individual. A significant constitutional change should add safety as a reason for suitable limitations under Article 19 to implement the Right to be forgotten. To balance the competing rights of privacy and freedom of expression, the Parliament and the apex court should carefully examine and analyze the Right to be forgotten. India should enact rigorous data protection laws. The Personal Data Protection Bill 2019 was a huge step in recognizing this Right. Still, the courts don't have a specific perspective on identifying this Right and have given contrasting judgments throughout the years. Therefore it is the need of the hour to have such a right which allows individuals to get their personal information from the Internet.
RECOMMENDATIONS ON HOW TO IMPLEMENT THE RIGHT TO BE FORGOTTEN
A firm information security policy would go a long way toward immediately instilling this in each person. It may be used to assist individuals to secure their security even further.
Large-scale automated systems and internet search engines may change their policy, disconnect users or remove specific information.
To realize the Right to be forgotten, privacy should be added as a basis for reasonable restrictions under Art 19(1)(a) of the Indian Constitution.
Structural improvement is needed; the Right to be forgotten may be limited.
Parliament and the apex court should review the said Right and balance the competing rights of both Right to privacy and freedom of speech and expression.
India needs to put in place a robust data protection regime.
The Right to be forgotten should be established in line with Indian jurisprudence and extended to the individual and the state as proposed in the Data Protection Bill, 2019.
The executive must exercise the power to balance the Right to privacy and freedom of expression following administrative principles against excessive delegation.
The author of this article is Shanthini S R, a second-year LLM student at Government Law College, Ernakulum, Kerala.
[1] GDPR, 2016, art.17.
[2] Google Spain SL v Mario Costeja Gonzalez Case C-131/12,Court of Justice of the European Union
[3] Times of India, Explained: what is the Right to be forgotten, 9 December 2020, Explained: What is the Right to be forgotten?-Times of India (indiatimes.com)
[4] Justice K.S Puttuswamy (Retd.)(2017) 10 S.C.C. 1
[6] Information Technology Act,2000, No.21, Acts of Parliament,2000
[7] Personal data protection bill,2019
[8] C/SCA/1854/2015
[9] (2017)10 S.C.C. 1
[10] A.I.R. 2019 Del. 132
[11] Civil writ petition no 9478/2016
[12] 2017 S.C.C. Online Kar 424
[13] (1980) 3 SCC 526
[14] W.P.(C) 3918/2020&CM APPL .11767/2021
[15] A.I.R. 1963 SC 1295
[16] Indian Constitution 1950, Art 19 and 21
[17] BLLAPL No. 4592 /2020
[18] Ajay Pal Singh and Rahil Setia, Right to be forgotten-Recognition, Legislation, and acceptance in the international and domestic domain, National University Law Journal (2018)
[19] 2014 B.C.C.A 295
[20] Michael J Kelly and David Satola, The Right to be Forgotten, University of Illinois Law Review, Vo.1,p.1(2017)
[21] Sowjanya S, Right to be Forgotten: A Forgotten part of Right to privacy,7 November 2018-The Law Blog
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
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