Articles

Right to be Forgotten: a Right or Restriction

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This article is written by Shivansh Pandey, a student of Department of law, PIMR, Indore & Palak Agrawal, a student of Amity law school, Noida.

Introduction: 

The Right to be Forgotten (right to erasure) owes its origin to the belief that everyone has legal right to ask for removal of any information about oneself available on the internet and is open for all. One can only ask for removal of that information which is of the potential to hamper social life of an individual. If an individual finds any of his data that is of sensitive nature or has served its purpose, he can ask for the removal of his data from the database. However, will be deleted only if it is not serving a greater public interest. 

However, in this internet driven era, privacy is just like toothpaste out of tube. Still, one can use the said right as a tool to protect their personal data. Individual can ask from search engine and websites to remove his/her data from the server, if he feels that the information available in the internet is hampering her social life and the information is not serving any greater public interest.

Origin of right to be forgotten:

The ‘Right to be forgotten’ is a concept that developed in European countries. Its beginnings may be traced back to 1995, when European Union (EU) passed its first personal data protection laws, Directive 95/46/EC (“Directives”). Despite the fact that the right to be forgotten (also known as right to erasure) was not clearly codified in the Directives, however, a combined interpretation of Article 6(1)(e) and Article 12(b) gave an idea of right to be forgotten. 

Later, the right to be forgotten was directly recognised in the case of Google Spain vs. Maria Costeja Gronzalez

In the case mentioned above, Maria Costeja Gronzalez, a Spanish citizen, whose details were mentioned in a web page of the local Spanish newspaper La vanguardia, briefing about a auction related with proceedings of a recovery of social security debts. 

These pages were appearing at the top in Google search of his name. Seeing this, he requested both La vanguardia and Google to remove his personal details and the link of that webpage, but his requests were denied by both of them. 

To seek relief, he logged a case against Google and La vanguardia, arguing that purpose of the information has been fulfilled as the auction completed years ago. The court upheld La vanguardia’s decision right as publication of such data was justified and it is a a common procedure to make these information public in press. The court ordered Google to remove the links as a purpose of the information is fulfilled and now it is no longer needed.

Status of Right to be Forgotten in India:

In European Union, the right to be forgotten has received legal status under the General Data Protection Regulation (GDPR).

In India, till now there is no regulation that particularly recognises the right to be forgotten as a legal right. However, an attempt is made in the form of Personal Data Protection Bill 2019, to recognise the said right as a legal right.

Section 20 of the Personal Data Protection Bill 2019 talks about the ‘Right to be forgotten’. This section states that: Any person who owes personal data, called as data principal have the right to restrict or prevent the continuing disclosure of his personal data by a data fiduciary where such disclosure meets any one of the following three conditions:

(a) The disclosure of the data has served the purpose for which it was collected or is no longer necessary for the purpose.

(b) The disclosure of the data was made with the consent of the data principal under section 11 and such consent has since been withdrawn; or

(c) The disclosure of the data was made contrary to the provisions of this Act or any other law for the time being in force.

Section 62 of the Data Protection Bill 2019, talks about the appointment of Adjudicating officer, and that officer will be the one to whom the request by the data principal be made ,to avail its ‘right to be forgotten’.

Section 18 of the Personal Data Protection Bill 2019 talks about the ‘Right to correction and erasure’ for the data which is no longer necessary for the purpose for which it was processed.

So, in our opinion section 18 should also be considered into cognizance with section 20 to provide for the protection of data to the data principle.

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Right to be forgotten cannot be used if: 

The data is being used for         

  • Journalistic purpose or,
  • Greater public interest in the data.

Why do we need a separate right to be forgotten?

This question arises that if we have many laws related to the privacy of an individual and protection for right to speech and expression for instance RTI act also talks about right to erasure in terms of restriction of data if it harms someone’s reputation then why we need some different laws for the same,

Then the answer is that these laws talks about the data that hasn’t been consented to be published but later on published without consent, so in that case one can file a complaint and that data will be erased after a long procedure. But what if we have initially consented either expressly or impliedly but later that data is harming one’s reputation and even when it is neither related to someone’s freedom of speech and expression nor that data is related to public good then in those conditions, we do not have laws and right to be forgotten will provide a protection for the same.

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Case law:

Dharamraj Bhanushankar Dave v. State of Gujarat :

In the above-mentioned case, Mr. Dave was charged with various offences under the Indian Penal Code, 1860, but after trial, he was acquitted. A petition was filed for removal of his name from the digital records because the case in which the petitioner was involved was ‘non-reportable’ as according to the petitioner. So, there must be no information available on the sites like ‘Indian kanoon’. The main issue, in this case, was that ‘Whether or not the said judgment could be published online?

In this case the Gujarat High Court defined the exact meaning of the word “Reportable” and said that ‘it is necessary for the transparency of the courts to maintain records’, hence the court indirectly refused to recognize ‘Right to be forgotten’.

{Name Redacted} vs The Registrar General on 23 January 2017:

In the above-mentioned case, a petition was filed for the removal of the name of the petitioner’s daughter from digital records maintained by the High court. It was pleaded by the petitioner that as online search engines like Google and Yahoo reflects the name of his daughter in the judgements as well as in cause list, it poses a threat to her reputation and also to her relationship with her husband (as the initial case was related to their personal disputes but later both of them mutually compromised).

In this case, Karnataka High court by recognizing ‘Right to be Forgotten’ said that ‘in line with the trend in Western countries of ‘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’ hence provide relief to the plaintiff and also make it sure that in the present case also , the name of the daughter would not be revealed.

Jorawar Singh Mundy vs Union of India 2021:

In the above-mentioned case, a petition was filed for the removal of the name of petitioner from the digital records that are available online, it was requested by the petitioner that the available information on online platforms posing a threat to his Right to privacy under Article 21. 

In this case Delhi High court stated that ‘issue is one that necessitates consideration of the Petitioner’s Right to Privacy, as well as the public’s Right to Information and the preservation of transparency in judicial records.’ Hence in this case court provided the petitioner with interim relief and ordered Indian kanoon to restrain information related to the petitioner till next orders.

The conflict between section 8(1)(j) of the RTI Act and the Right to be forgotten under the New DP Act:

Section 8(1)(j)   of the Right to Information Act provides an exemption (against disclosure) of data to the data principle but this section differs from section 20 of the New data protection bill 2019 in a manner that the former needs some rigorous methods for individuals to request to avail exemption provided under section 8(1)(j) of the RTI act and the public official to whom that request has been made can deny providing exemption but under new Data Protection Bill, data principal can proactively take steps to restrict or prevent the continuing disclosure of his or her personal data by petitioning an Adjudicating Officer.

Amendment proposed by the new data protection bill to section 8(1)(j) of the RTI Act:

The proposed amendment states that personal data is not required to be disclosed under the RTI Act if it is likely to cause ‘harm’ to a data principal and that such ‘harm’ outweighs the public interest in accessing such information, considering the common good of promoting transparency and accountability in government operations.

Conclusion:

In the modern era where it just take some seconds to spread someone’s name or personal information on internet, one need to worry about the fake news that can result in the loss of reputation and social status of an individual, throughout the research we have analysed that erasure of a data is necessary if it harms someone’s reputation or social life like if we take a practical life example of a very famous case of Jasleen Kaur ,where she have accused Sarvjeet Singh for verbally abusing and molesting her in public place, but later  Mr. Singh was acquitted by the court, he got justice in papers but after that incidence he lost his social reputation because his name was involved in a case where his character was questioned. Even if we open some journals today then his name is there as an accused.So, it is also necessary to have access to right to erasure, but this right cannot be absolute in present times where we have a stronger right to speech and expression. In India we do not have any specific laws for the removal of the data completely, but we believe that this is a direct harm to one’s personal life and liberty as well as privacy so we need some rights like right to be forgotten but as these rights cannot be absolute so there must be some regulatory body who can take vigilance to these kinds of fake and useless data that harms someone’s reputation and we also recommend to make a separate redressal or forum that can deal with analysing of data that if it really harms ones reputation or it is for public good; it will not only lessen the burden of courts but also provide speedy relief to the victim. If the data is harming someone’s personal as well as social life, then that data must be completely erased i.e., not only from the web but also from the backup of Data fiduciary so that data can never be traced again.

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