Oblivisci and the Right to Be Forgotten in India

ABSTRACT

This is the twenty-first Century and we live in the internet era where everything is transforming into digital, including an omnipresent, global, and hugely accessible media to almost 4.88 billion internet users. The internet allows us to access a wealth of information, including daily news that provides extensive details on various topics, locations, and individuals. Everybody whose information found its way once on the internet, be it due to anything, would perpetually be there because of storage clouds and we still don’t know about the erasure of these pieces of information. When this readily available information infringes on someone’s basic human rights including the right to privacy, we are shunned as the perpetrator we fight against is a gigantic ocean of data we are clueless about. And when human rights are concerned in this dynamic sphere of daily data sharing, people want control over their data and demand their right to privacy, including the removal of these unconsented personal data as a remedy, and want to be forgotten, but this right to be forgotten would lead to global censorships on search engines and websites according to some free speech advocator NGOs like Article19, which say that it seems to limit and undermine free speech. This article tries to find out historical conceptions that led to the formation of this right and about the contentions revolving around this right from the two discords.

INTRODUCTION

The concept of being forgotten from available databases comes from the right to oblivion from French Jurisprudence called ‘le droit a l’oubli’, where the root word of oblivion, i.e., oblivisci means “to forget” which is granted to ex-convicts who demand their names to be effaced from the official databases to continue being a part of society again so that their past doesn’t affect their future. The expansion in the spectrum of this right led to the inception and evolvement of the right to be forgotten which comes under the ambit of the fundamental right to privacy in India to address the issues of protecting one’s dignity, reputation, identity, and integrity from the public scrutiny and data abuse. 

Two dissenting adjudications on a similar issue stirred the world in 2014 and created friction between the two groups of people regarding this right. Europe’s Google Spain Case i.e., Google Spain SL, Google Inc v Agencia Española de Protección de Datos, Mario Costeja González, where a man was aggrieved by his information being circulated online when his case was already resolved and was now irrelevant to any citation regarding the issue led to the introduction of GDPR (General Data Protection Regulation) where the Court of Justice of the European Union adjudicated that section 17 of the GDPR affirms such a right namely the Right to erasure. This principle is recognized by countries like Argentina and the Philippines as well. But, the American First Amendment prioritizes free speech and the right to know over the right to be forgotten. US circuit courts in various cases like Cindy Gracia v. Google and Martin v. Hearst Corporation made it obvious that the American viewpoint doesn’t recognize the European principle and that it won’t direct the data handlers to forcibly remove information available on the internet or it could violate free-press rulings. 

The OECD guidelines on the protection of privacy and transborder flows of personal data also put limitations on the collection, consensual attainment, relevancy of the data, and the necessity to the purposes with the right to obtain information related to him, challenge any unreasonable and unnecessary data and have it erased, rectified, completed, or amended which might give footnotes to this right to be forgotten. 

The Supreme Court of India in K S Puttaswamy (Retd.) & Anr. v. Union of India and Ors. declared the right to privacy to be a fundamental right under article 21 of the Indian Constitution, and the right to be forgotten falls under the ambit of an individual’s right to privacy thus making it cardinal to contemplate the significance of Right To Be Forgotten (RTBF) in India. 

What do the opposites contend?

The key to the conflict lies in the dual fundamental rights that are being grated upon the two factions of society with differing opinions. Where one side contends over the fear that freedom of speech and information would be compromised, while on the other hand, RTBF advocates deny the same on the ground that an individual’s right to privacy and identity shouldn’t be jeopardized and that personal data has nothing to do with the public interest rather it might frustrate the public by effecting their employment prospects, credit matters, reputation, etc. also that these might restrict or limit the freedom of expression as some archivists and historians argue in fright of losing imperative information. But, which side has the upper hand in the said matter is still inscrutable. Though legal jurists support the right to privacy over the right to freedom of expression with certain exemptions for it cannot be absolute and has to go through various steps to get a piece of information removed from a website. They would be successful in such an action depending upon the fact that whether it is an individual or an organization, the nature of the information in question as well as the circumstances and the domain of the data if it comes under the public domain or not. 

LEGAL TRENDS OF RTBF IN INDIA

The supreme court in K. S. Puttaswamy v. Union of India, the landmark case which revamped India’s stand on human dignity and privacy has emphasized that the right to be let alone is an essential part of the privacy of an individual. 

The first case in India that dealt with this issue was Dharmaraj Bhanushankar Dave v. State of Gujarat before the Gujarat High Court. The plaintiff was charged with various criminal offences when acquitted, found availability of judgment in Europe’s Google Spain Case, hence filed a suit under Article 226 praying for ‘permanent restraint of free public exhibition of the judgment’ for he was getting affected in both his personal and professional life. The court held that anybody can get copies of any decisions or proceedings and that Article 21 of the Constitution does not prohibit the publication of any judgment or proceeding on a website. Hence, refuting the existence of the “right to be forgotten”.

The second case was  {Name Redacted} v. The Registrar General of Karnataka High Court of  2016, where the father of a woman earlier involved in a suit regarding her marital life problems had her info circulating on various online platforms which affected her public image as well as her personal life. The court granted the fathers’ exceptional request, and the Registrar promised to conceal the daughter’s name if it appeared in any case title. This was the first time RTBF was recognized by a High court in India.

In Delhi High Court in Zulfiqar Ahman Khan v. M/S Quintillion Business Media,  the court directed the removal of two defamatory articles against the petitioner on the website portal of the respondent concerning #Metoo allegations against him after he filed a suit against a media company to take down the articles and its references from the search engines contending that it violated his right to privacy, right to be forgotten and the right to be left alone along with personal grief and professional loss.

In Custom v. Jorawar Singh Mundy, an American man had to face charges when he travelled to India in 2009. But, even after getting acquitted of all the charges, he found the judgment available on Google searches which affected his employment opportunities and then filed a petition for the removal of the judgment from various search engines including Google and Indian Kanoon recognizing his right to privacy, under Article 21 of the constitution which some sites adhered to, but not all. Hence, the court directed the other respondents to block access to the judgment from their websites until a final judgment is delivered. Delhi High Court in another case attested that when the exhibition of a person is being done against her will, the right to privacy includes the right to be forgotten and the right to be left alone as “inherent aspects”. 

Another case that compelled the Indian judiciary to ponder the significance of the right to be forgotten was Subhranshu Rout v. State of Orissa concerning revenge porn. The need for such a statute that could address this crucial aspect of people’s privacy infringement was observed in this case and it was also discovered that IT Rules, 2011 acknowledged the need for the right to be forgotten though it didn’t provide an explicit legal framework.

In such a tightrope situation, it becomes arduous to balance the Right to Privacy of individuals with the Right to Information of the public. Thus, what can be inferred is that the facts of the particular case do matter substantially and the search engine can be compelled to remove our data only when it evinces that the information is supposed to stay on the source and that it has some public interest in doing so, its relevancy is legitimate and there could be a potential risk to the public by the erasure which alludes to several necessitated qualifications and exemptions to this right to erasure.      

Further, the IT Rules, 2021 Bill also provided the framework regarding the flow of data on the internet, grievance redressal mechanism, and the role of the intermediaries with which the identification of the first originator of any information online and content showing child sexual abuse and rape can be done, information identical to that which has previously been prohibited by a court or government is possible and all of this while safeguarding the interests of free expression and user privacy on a regular basis which could be deemed as a very well deliberated step towards safeguarding rights of the victims of social media by the Government of India. Compliance with the above guidelines by the internet giants is undoubtedly onerous but the plethora of complaints concerning misuse of social media and these platforms demanded such legislation. 

Personal Data Protection Bill 2019 

A single-judge bench in the Subhranshu case has also mentioned the Personal Data Protection Bill 2019 (“PDP Bill”) proposed by the Ministry of Law and Justice on the recommendation of the B. N. Sri Krishna Committee that the right to be forgotten can be exercised if the data is misleading, humiliating, obsolete, and embarrassing. This right is incorporated explicitly in section 20 of the PDP bill which bestows every person with the right to prevent or restrict the continuing disclosure of personal data by any data fiduciary if such disclosure has served the purpose for which it was collected, is no longer necessary for the purpose, was made with the consent of the data principal, or was made contrary to the provisions of this Act or any other law for the time being in force.

Data Protection Bill 2022 

This PDP Bill 2019 after further consideration resulted in the publishing of the finalized Data Protection Bill 2021 currently tabled at the Parliament of India, addressing the right to confirmation and access, the right to correction and erasure, the right to data portability, and the right to be forgotten. The right to avail remedies and compensation can also be found in clause 62 of the bill. The bill obliged the data fiduciaries to process personal data fairly and reasonably to ensure the privacy of data principles and this data to be retained only for the period necessary for the purpose it was taken for. Data fiduciaries shall take all reasonable measures to notify all entities to whom they have provided personal data of any corrections, completions, updates, or erasures.

The Authority may grant the request to be forgotten on the following grounds: 

• The sensitivity of the personal data; 
• The scope of the disclosure or processing and the degree of restriction sought; 
• The data principal’s role in public life; 
• The public’s relevance of such personal data; 
• And the nature of the disclosure or processing and its impact on the data fiduciary’s activities.

CONCLUSION

Like other essential rights, privacy does not have an absolute value. Nonetheless, because it is a consequence of human dignity, it must remain undeniable. The expansion of the digital economy has increased the use of data as a critical means of communication between people, and it is vital to cultivate a common culture that promotes a free and fair digital economy while respecting people’s informational privacy and assuring empowerment, advancement, and innovation through digital governance and inclusion, as well as for topics related to or incidental to that. 

Evidently, this right to be forgotten is also not an absolute right, and just like any right, it is also subject to a range of contingencies as already demonstrated by the above case precedents and efforts by the legislature that shows its dependency on the individual circumstances, the type of information, conduct of the person making such request and relevancy of the information and the Data Protection Bill dispenses only for the mechanism to delink such data, not a complete erasure from the source as recommended by the committee itself regarding free speech concerns, lack of transparency concerning critical information about businesses or people, limitation to the liberty granted to media, journalists, and others. Neither vast transparency nor vague rights can be favoured as both don’t seem to be coextensive. For individuals seeking remedy for their invasion of privacy due to the abusers of the internet, this right would turn out to be a phenomenal panacea whereas public records and the right to information concerned with academic, scientific, and historical research purposes might get overwhelmed especially for information of crimes against the society like rape and genocide. What the need of the hour is still unascertained but what can be easily comprehended is that neither the right to privacy nor freedom of speech and expression are to be undermined. 

This article is a part of the DNLU-SLJ (Online) series, for submissions click here.

Prerna Shree

Student at National University of Study and Research in Law (NUSRL),Ranchi