RIGHT TO BE FORGOTTEN: A FUNDAMENTAL RIGHT

This Article is written by Varnika Verma student of  Chanakya Law College, Kumaun University, Uttarakhand.

INTRODUCTION:

The concept of right to be forgotten deals with online privacy of an individual, where they have a vested right to request search engines, organizations and other online platforms to rub their personal data from their respective platforms. As a result, their personal data will not be highlighted during online searches and in other search engines as well.

This conceptualization has emerged from French adaptation of the same as “droit a l’oubli” that circumscribes within itself “right to privacy” as well as “right to be forgotten” especially administered at the online media or print media.

The idea of “right to be forgotten” is based on the view that every citizen has the freedom to carry on with their lives in person and with a free mind without worrying about their past instances or stigmas related to such event.

“Right to be forgotten” has been derived for the first time in the international case of Google Spain SL, Google Inc vs. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez (2014). The right is codified and can be found in the General Data Protection Regulation (GDPR) in addition to “right to erasure”.

EUROPEAN UNION GENERAL DATA PROTECTION REGULATION (GDPR):

GDPR was passed in the year 2018 by the European Union (EU) that abbreviates “right to be forgotten” in the form of “right to erasure” under Article 17 and Recitals 65 and 66 respectively. The individual or “data subject” has been defined under Article 02 of GDPR that permits the right to question the “controller” who is responsible for processing of private data to rub the personal information of an individual without any undue delay.

RIGHT TO BE FORGOTTEN; A PART OF ARTICLE 21:

The “right to be forgotten” falls under “right to privacy” that itself is under the umbrella of Article 21 (right to life and personal liberty) of Constitution of India. The Supreme Court declared “right to privacy” as a part of Article 21 in the landmark case of K.S.Puttaswamy vs. Union of India and Ors. (2017) as it considered it to be a natural right that is important to enjoy a life with dignity. The said right necessitates concealing information about an individual if it turns out be more sensitive. Therefore, if someone’s personal data is being made available to third party or to the public, such person has a definite right to be forgotten in order to protect its privacy.

Although, this right is also not an absolute right like others as certain data pr information cannot be removed from the social sites that are of public importance or is of national security. For instance; National Data collected by the government for the national interest cannot be removed as it overrides any lack of consent or the “right to erasure”. Therefore, it can be said that “right to be forgotten” is a right of limited nature as it requires consent of the competent authority for its enforcement.

BALANCE BETWEEN THE RIGHT TO PRIVACY OF INDIVIDUAL AND RIGHT TO INFORMATION OF THE PUBLIC:

The issue that every Hon’ble Court has to face is maintaining a balance between the right to privacy of individual and right to information of public and to maintain transparency in judicial records.

In the case of Jorawer Singh Mundy vs. Union of India and Ors., Delhi High Court dealt with the same issue. So, Hon’ble Justice Pratibha M. Singh relied on an order passed in the case of Zulfiqar Ahman Khan vs. M/S Quintillion Business Pvt. Ltd. and Ors. and an order passed by the Orissa High Court in the case of Subhranshu Rout vs. State of Odisha, where it was held that the petitioner is entitled to interim protection, when the legal issues are pending before the Court.

In the case of Custom vs. Jorawar Singh Mundy also Google India and Google LLC were also directed to remove judgment from their sites, keeping in mind the right to privacy of the individual. In addition, Indian Kanoon was also directed to delete the judgment that was accessible using google/yahoo etc.

PROS AND CONS OF THE RIGHT:

PROS CONS
·         Individual can restrain their information to be made accessible to public. ·         The privacy of an individual can be override if the information turns out to be of public importance.
·         RTBF can remove sensitive, libelous and false information of an individual from online portals. ·         It restricts freedom given to media, journalists and other authorities.
·         The false or illegal data can be deleted from net that is uploaded by the third party. ·         This right is vast and complicated that is without any precedent.
·         It provides a new opportunity to individual to start a new beginning. ·         All the search engines may be backed up with requests to remove information, so it may not be removed immediately.
·         All the information must be removed with immediate effect that is threat to personal and financial security. ·         Data deleted from one source does not ensure that it has been deleted from other as well, which makes it difficult to comply with RTBF request in its absolute form.

 WHEN THIS RIGHT CANNOT BE EXERCISED?

The Apex Court had already clarified in the K.S. Puttaswamy Case that recognizing the “right to privacy” does not mean that all facets of previous existence are to be exterminated, as some of them may have a social implication.

Furthermore the Hon’ble Court directed keeping in mind the above view that the “right to be forgotten” cannot be exercised in case the information is essential for:

  1. exercising the right to freedom of expression and information.
  2. compliance with legal obligations.
  • performance of the task carried out in public interest, or public health.
  1. archiving purposes in the public interest.
  2. scientific or historical research purposes or statistical purposes
  3. the establishment, exercise or defense of legal claims.

PERSONAL DATA PROTECTION BILL 2019 (PDP BILL):

The PDP Bill states that lawful consent should be taken from the data subject before and individual’s data is to be processed. It makes the disposition of privacy by design essential to operate for data processors. Unlike the EU GDPR, the PDP Bill uses the term “data principles” and “data fiduciaries” instead of “data subjects” and “data controllers” respectively.

The said Bill promotes the “right to be forgotten”, as the right against continuous divulgence, that should be permitted to every citizen with regard to their personal data or information that is being accessed on the online platforms.

Each citizen must have a right to demand for non-revelation about their misleading or past embarrassing events that might have happened with them at some point of their life, that are especially irrelevant with their present day life.

This right has been granted to the data principal against the data fiduciary under Section 27 of PDP BILL to “limit, delete, and correct the disclosure of the personal data on the internet”. The observation and implementation of these regulations are proposed to be performed by the Data Protection Authority, under Section 27(2) of the PDP Bill.

However, the said right is not an absolute right as other; it is also subjected to certain restrictions. Section 62 of the PDP Bill directs the Central Government to appoint an officer to be known as Adjudicating Officer who shall monitor all the requests about the personal information disclosure of deletion.

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021:

The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, was notified by the Government of India on 25th of February 2021, that provides establishment and maintenance of Grievance Redressal Mechanisms be an intermediary operating mandatory.

Rule 03(2) of 2021 Rules mentions that an intermediary shall appoint an officer known as “Grievance Officer” who shall handle grievances and complaints that are filed by Indian users. This also includes the name and contact details of the Grievance Officer on the website and also mentions the method of filing the application.

The said rule mentions the role of the Grievance Officer is to:

  • Accept complaints that are received within 24 hours and also dispose them within 15 days.
  • Acknowledge any order, notice or direction issued by the apex court or by the government body.

CONCLUSION:

The right to be forgotten is a right whose implementation is a difficult task. As for its enforcement it requires permission from the competent authority who has the discretion to permit such request or not and the authority’s decision is final. This right has created a really big confusion between privacy and transparency, as the internet cannot remove all the data about an individual from online sources otherwise it would not be justice for the public. Here it become necessary to keep a balance between what is to be deleted keeping in mind the privacy of the individual and what is to be showcase for the interest of public.

The said right also demands changes in Article 19(2) as it becomes really difficult to put these two rights in a single box. This state of confusion must be minimized by the judiciary so that a proper procedure can be maintained for the right to be forgotten.

Another reason to worry is that this right will lose all its significance if the data in question is not erased from all online platforms globally. To deal with this, the international data on data protection should stretch its hands so that it could include right to be forgotten which will then be implemented globally and then it will ensure the true essence of “right to be forgotten”.

REFERENCES:

  1. Google Spain SL, Google Inc vs. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez ECLI:EU:C:201:317
  2. General Data Protection Regulation GDPR, https://gdpr-info.eu/issues/right-to-be-forgotten/
  3. S.Puttaswamy vs. Union of India and Ors. (2017 10 SCC 1).
  4. Jorawer Singh Mundy vs. Union of India and Ors., MANU/DE/0954/2021
  5. Zulfiqar Ahman Khan vs. Quintillion Business Media Pvt. Ltd. and Ors. 2019 (175) DRJ 660
  6. Subhranshu Rout vs. State of Odisha, MANU/OR/0270/2020
  7. Custom vs. Jorawar Singh Mundy 2013 (1) JCC 32
  8. Lucy Rana and Rama Majumdar, India: The Right to be Forgotten, Mondaq, (Aug. 20, 2021), https://www.mondaq.com/india/privacy-protection/1103662/the-right-to-be-forgotten
  9. Apoorva Mandhani, Do you have a ‘right to be forgotten’? Here’s what it means and how Indian courts view it, ThePrint, (May 27, 2021, 11:13 AM), https://theprint.in/judiciary/do-you-have-a-right-to-be-forgotten-heres-what-it-means-and-how-indian-courts-view-it/666226/
  10. Ministry of Electronics and Information Technology, https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-intermediary