In 2020, the High Court of Orissa examined the right of a rape victim to be forgotten from the internet, where the court stated,
“…information in the public domain is like toothpaste, once it is out of
the tube one can’t get it back in and once the information is in the public
domain it will never go away”[1]
In a time driven by technology, where
information about ‘everybody’ is at the tip of fingers, imagine having consent
and control over ‘how much information’ and ‘what kind of information’ any
third-party witness about you. In an era of digital permanence, having an unsaid
gem in your fundamental right that helps you remove any trace, subject to
restrictions, of you from the internet. That right is, RIGHT TO BE FORGOTTEN.
Right to be forgotten (RTBF) allows
individuals (data subjects) to request that their personal information be
removed from the Internet (not show up in search engine searches), and seeks to
give individual’s increased control over their personal information stored
online.[2]
Therefore, to put it in simple language, any
person can ask any social media intermediary, such as Google, Meta or Twitter,
to delete information from their server including search results, databases,
websites or any other public platforms, once the personal information in
question is no longer necessary, or relevant.
By this very nature, RTBF is also known as
the ‘Right to Erasure’.
Legal Recognition:
Western Recognition:
The initial momentum of RTBF can be traced
in a US District Court of Appeals judgement of Melvin v. Reid,
where, the plaintiff, Gabrielle Darley Melvin, was a woman of unchaste
character and was tried for murder, however, in 1918, all the charges against
her were dropped. Further, in 1925, the defendants, without her knowledge or
permission, made and released a film titled "The Red Kimono" which
was advertised as a true story and the plaintiff's maiden name was used for
promotion. In 1931, the court upheld the right of privacy of the plaintiff. The
judges justified the ruling by stating the Constitution of California, [3]
“The right to pursue and obtain happiness
is guaranteed to all by the fundamental law of our state. This right by its
very nature includes the right to live free from the unwarranted attack of
others upon one's liberty, property, and reputation. Any person living a life
of rectitude has that right to happiness which includes freedom from
unnecessary attacks on his character, social standing, or reputation.”
Article 8 of the Human Rights Act 1998 states, right to
respect for your private life, your family life, your home and your
correspondence (letters, telephone calls and emails) [4], which has been used by many
common law countries as a medium to press for RTBF after the penetration of
social media.
In 1995, the data protection directive of
the European Union was passed with an aim to regulate personal data, although,
this directive did not explicitly mention RTBF. However, in 2014, the European
Parliament gave statutory recognition to the right to erasure via Article 17 of
the UK General Data Protection Regulation (GDPR) [5] where individuals have the
right to have personal data erased under certain circumstances. Hence, making
this right not absolute.
In 2010, Costeja González (Petitioner)
brought a complaint before the Spain’s Data Protection Agency against La
Vanguardia newspaper, Google Spain, and Google Inc where he demanded Google to
remove the record of his 1998 proceedings which had been fully resolved for
several years and therefore, they should no longer appear online. The
proceedings escalated to the Court of Justice of the European Union (CJEU)
where the court upheld RTBF of the petitioner by stating,
“…that Google must delete links to personal
information from search results at the request of a data subject unless a
strong public interest suggests otherwise.” [6]
This decision led to an explicit use of
RTBF by any western court.
Indian Recognition:
In India, RTBF doesn’t have legislative
sanction yet, however, the law relating to Personal Data Protection Bill 2019
is set to be tabled in parliament.
Under Section 20 of Personal Data
Protection Bill 2019 [7],
every person has the right to restrict or prevent continuing disclosure of
personal data by any data fiduciary if such disclosure meets any one of the
following conditions,
·
The disclosure served the purpose for which it was made or is no longer
necessary
·
The disclosure was made with prior consent from the individual and such
consent has since been withdrawn.
·
The disclosure was made contrary to the provisions of the new bill or
any other law in force. [8]
Despite the lack of legislative statute,
the Supreme Court of India in 2017, in the landmark judgement of Justice
K.S. Puttaswamy (Retd) v. Union of India [9], held that the right to be
let alone is a quintessential part of the autonomy and the privacy of an
individual. The apex court also highlighted the importance of RTBF, and stated
that if India were to recognize RTBF as it exists under the GDPR today, “it
would only mean that an individual who is no longer desirous of his personal
data to be processed or stored, should be able to remove it from the system
where the personal data/information is no longer necessary, relevant, or is
incorrect and serves no legitimate interest”. Subsequently, the court stated,
right to be forgotten emerges from the right to privacy under Article 21 and
partly from the right to dignity under Article 14.
Further, the Supreme Court also observed
that this right was subject to certain limitations, i.e., “exercising the
right of freedom of expression and information, for compliance with legal
obligations, for the performance of a task carried out in public interest, on
the grounds of public interest in the area of public health, for achieving
purposes in the public interest, scientific or historical research purposes or
statistical purposes, or for the establishment, exercise or defence of legal
claims.”
In a current ongoing
case in Delhi High Court, the Ministry of Electronics and Information
Technology (MeitY) in its affidavit stated, “the right to privacy is a
fundamental right and it also includes the right to be forgotten.”[10] This is the first
instance in which recognition to RTBF has been given by a Ministry.
Right to be Forgotten V. Right to Privacy:
Right to be forgotten is distinct from the Right
to Privacy. Right to Privacy constitutes information that is not publicly
known, whereas RTBF involves removing information that was publicly known at a
certain time and not allowing third parties to access the information. RTBF
allows the individuals to have certain information or data about themselves in
the form of documents, photographs, videos etc. to be deleted from the
internet, so that it may not be accessed by internet search engines any further.[11]
Right to Privacy can be located in the following
legislatures via the corresponding sections:
·
Juvenile Justice
Act, 2015[12], section 3(11)
·
Indian Penal Code, 1860, section 228A[13]
·
The Protection of Children from Sexual Offences Act, 2012, Section 23,
24 and Section 33 etc.[14]
Primarily, the legislature for the right to
privacy has been enacted for protecting the identity of rape or any other
sexual assault victims, therefore, their names, address or any personal details
are not reflected in any order passed by a Court. Hence, sufficiently
protecting the right to privacy of that person.
Indian Legal Precedents:
Right to be Forgotten was denied:
The first case in India to deal with the
concept of the right to be forgotten was the case of Dharmaraj
Bhanushankar Dave v. the State of Gujarat[15]
in the Gujarat High Court. The petitioner had filed a case for the
removal of a published judgment in which he had been acquitted. However, the court
did not grant an order for the removal of the judgement, as the petitioner had
not been able to point out specific provisions of law that had been violated.
Right to be Forgotten was upheld:
In Sri Vasunathan v. The Registrar
General[16], a woman had
filed an FIR against a man, involving crimes of grave nature such as forgery,
compelling to get married and extortion. She also filed a civil suit for the annulment
of her marriage with him. She requested an injunction to restrain the man from claiming
any marital rights. Later, both reached an out-of-court settlement and the
cases were closed. Subsequently, the woman got married. Later, her father filed
another petition realizing that an online search would reveal his daughters’
connections to all the legal disputes. This could result in affecting her
daughter’s personal life and her public image. The father pleaded to the court
to mask her daughter’s name in the cause title of the cases and prayed the same
for any other copy available at online portals.
The Karnataka High Court approved the
father's request, stating that she had a RTBF. Hon'ble Justice Anand Byrareddy,
the author of the judgment the ruling would align with western states’
decisions, which typically approve of the right to be forgotten when dealing
with cases “involving women in general and highly sensitive cases involving
rape or affecting the modesty and reputation of the person concerned.”
Thus, while RTBF was upheld it was not based on the Fundamental Right to
Privacy, but instead on the idea of modesty and reputation of women.
In Civil Writ Petition No. 9478 of
201640[17], the
name of the case is no longer available on Legal Databases owing to a Kerala
High Court order dated February 23, 2017, the Kerala High Court ruled in favour
of Right to be forgotten by asking the online Legal database Indian Kanoon to
remove the name of the rape victim from a previous judgment in an interim order
until further orders were issued.
Concerns regarding Right to be Forgotten:
Right to be forgotten suffers from many
constitutional inconsistencies which make its grounding principles not coherent
with the other Fundamental Rights. Article 19 of the Constitution protects the
right to expression of the citizens and allows an individual to post content
online about another person, as long it is not restricted by a statutory
legislation, under Article 19(2). Thus, the broad conception of personal data
would infringe the right to freedom of expression. Furthermore, it impedes with
the public’s right to information due to decrease in the quality of the internet
searches because of unwarranted requests for removal of personal information by
data subjects.
Conclusion:
About
the Author
Sanchita Gupta is a Second Year student at Law Center 2, Faculty of Law, University of Delhi. She has completed her graduation in Commerce and has worked as a Regulatory and Compliance Analyst. Her interest lies in Corporate Law and Alternate Dispute Resolution.
[1] Subhranshu Rout v. State of Odisha, 2020 SCC OnLine Ori 878. https://indiankanoon.org/doc/6266786/
[2] Vidhi Centre for Legal Policy, “Why the Recent Ruling on the Right
to Be Forgotten Is a Gamechanger for
India’s Data Laws”, February 2021. https://www.thebetterindia.com/87149/how-right-to-be-forgotten-ruling-overhaul-india-privacy/
[3] “Torts: The Right to Privacy and the Pursuit of Happiness”, Vol.
20 No.1, CLR 100-102 (1931). https://www.jstor.org/stable/3475941?origin=crossref
[4] The Human Rights Act, 1998, Article 8. https://www.equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family-life
[5] General Data Protection Regulation, 2016, Article 17. https://gdpr-info.eu/art-17-gdpr/
[6] Case C-131/12, Google Spain SL v. Agencia Española de Protección
de Datos (May 13, 2014). https://curia.europa.eu/jcms/upload/docs/application/pdf/2014-05/cp140070en.pdf
[7] The Personal Data Protection Bill, 2019, Section 20. http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf
[8] Jithendra Palepu, “The Personal Data Protection Bill 2019: Do you have the Right to be Forgotten from the Internet?”, The Leaflet, Sept. 18, 2020. https://www.theleaflet.in/the-personal-data-protection-bill-2018-do-you-have-the-right-to-be-forgotten-from-the-internet/
[9] Justice K.S. Puttaswamy (Retd) v. Union of India, 2017 SCC OnLine
SC 1462. https://main.sci.gov.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf
[10] Jaideep Mirchandani & Anr. V. Union Of India Ministry Of
Communication And It & Ors. https://www.livelaw.in/news-updates/right-to-privacy-includes-right-to-be-forgotten-provisions-personal-data-protection-bill-centre-tells-delhi-high-court-187779
[11] R&S Law Associates, Right to be Forgotten: Indian Perspective
(2020). https://rslawassociates.co.in/right-to-be-forgotten-indian-perspective/
[12] The Juvenile Justice (Care And Protection Of Children) Act, 2015,
Section 3. https://legislative.gov.in/sites/default/files/A2016-2_0.pdf
[13] The Indian Penal Code, 1860, Section 228A. https://legislative.gov.in/sites/default/files/A1860-45.pdf
[14] The Protection of Children from Sexual
Offences Act, 2012 https://legislative.gov.in/sites/default/files/The%20Protection%20of%20Children%20from%20Sexual%20Offences%20Act%2C%202012_0.pdf
[15] Dharmaraj Bhanushankar Dave v. the State of Gujar, 2015 SCC
OnLineGuj 2019. https://indiankanoon.org/doc/156866860/
[16] Sri Vasunathan v. The Registrar General, 2017 SCC OnLine Kar 424. https://indiankanoon.org/doc/12577154/
[17] Global Freedom of Expression, The Case of the Rape Survivor’s Right to Be Forgotten (India), (University of Colombia, New York, 2017). https://globalfreedomofexpression.columbia.edu/cases/the-case-of-the-rape-survivors-right-to-be-forgotten-india/
Comments
Post a Comment