Right to be Forgotten: A forgotten right

INTRODUCTION

In a world of social media where your personal information is not restricted to the government records, everyone has the access to the information that has been put online. With internet being the fastest medium of communication, things go viral in a blink of an eye. The information that is easily available on the online portals is overflowing with the personal data of an individual making it abundantly clear that he or she exists in a world of ‘Big Data’. At times, the data about us which we would not appreciate being easily available in the public domain is put for everyone to access without our consent.

‘Right to be forgotten’ is a concept whereby a person is entitled to have the right to lead an anonymous life with reference to data retention and digital memory on the online portals. In simple words, ‘Right to be forgotten’ refers to the right to have an individual’s personal details removed from the public domain, including the internet.

Right to be forgotten under the EU GDPR has also given light to right to erasure. It is to obtain the consent of the individual before floating his or her personal data online. So, if the consent is given and later if the consent is withdrawn, the owner has a right to have his data erased. It falls under the ambit of an individual’s Right to Privacy which further is a part of Right to Life provided under Article 21 of the Indian Constitution. It empowers an individual to ask organizations to delete his or her personal data. It is mainly for the personal data of an individual which has been put up on the internet without the consent of the individual.

Right to be forgotten is not an explicit right granted to the citizens of India. It is well established in the international context but Indian Courts have not had much occasion to deal with it. Even though in the past few years it has caught an eye in India, it is yet to be fully organized and implemented. It is believed that it is imperative for India to have a proper legislation on the Right to be forgotten so as to protect the identity and reputation of the Accused person.

INTERNATIONAL CONTEXT

The concept of the Right to be forgotten had originated from the much older concept of droit à l’oubli, which translates to ‘Right to Oblivion’. It has historically been applied in exceptional cases that involved an individual who had been served a criminal sentence and expressed his inclination to have his name removed from all records.

The Right to be forgotten has been perceived as a part of the Right to Privacy in nations like United Kingdom and the United States of America. Be that as it may, in both the nations this right isn’t viewed as an absolute one and it needs to be balanced with the Right to Freedom of Speech and Expression and Right to Information.

EVOLUTION OF THE LAW

A judgment was passed in the US through the case of Melvin v. Reid- Cal. App. 285, 297 P.91 (1931) wherein the Right to be forgotten was recognized as a part of the Right to Privacy. The Court had held that “any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing or reputation” which gave birth to the right to be forgotten, although it’s still not codified by the legislature there. In 2014, The Court of Justice of the European Union delivered a landmark judgment in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González, which sparked a heated discussion on the future of search engines and personal data. Prior to this, the internet was considered to be a place of permanent memories. It was in this case that the Court recognized the Right to be forgotten as a part of Right to Privacy.

According to the European Union General Data Protection Regulation (EU- GDPR), the right to be forgotten has been laid down in Article 17 of the regulation. It states that the data subject shall have the right to obtain the erasure of personal data concerning him, without undue delay, from the controller and the controller shall have the obligation to erase personal data.

In 2019, the European Court of Justice ruled that the ‘Right to be forgotten’ under European law could not apply beyond the borders of European Union member states.

INDIAN CONTEXT

Right to Privacy in India was not given much attention let alone the Right to be forgotten. In India, privacy was never considered to be a matter of primary concern. It was first noted in the case of Kharak Singh versus State of Uttar Pradesh 1963 AIR 1295, 1964 SCR (1) 332, that privacy serves as an ingredient of personal liberty and is not in contravention of Article 19 of the Indian Constitution.

The Right to be forgotten was a concept which had no judicial recognition at all in India till 2015. In 2015, a case of Dharamraj Bhanushankar Dave versus State of Gujarat and Ors. [SCA No. 1854 of 2015] came up before the Gujarat High Court. It was the first case of Right to be forgotten in India. It was dealing with the removal of a non- reportable judgment. The Gujarat High Court held that there can be no removal of such data as it will still be accessible on the High Court database and hence did not recognize the Right to be forgotten. Although there was no clear mention of the term ‘Right to be forgotten’, but it implicitly carved a path for discussion of a new concept

On the contrary, in the case of Sri Vasunathan v The Registrar General (2017), the Karnataka High Court was seen as generally upholding the concept of Right to be forgotten. The Court observed that it would help in maintaining a veil of secrecy on the victim’s identity, especially in cases of highly sensitive nature involving rape or affecting the modesty of the woman.

In 2017, the Supreme Court of India declared ‘Right to Privacy’ as a fundamental right under Article 21 of the Indian Constitution through the famous case of K.S Puttaswamy versus Union of India and Ors, 2017- [No. 494 of 2012, (2017) 10 SCC 1].

WAY FORWARD

Subsequently, Right to Privacy was considered to be a topic of discussion in the Indian parliament and was included in the Personal Data Protection Bill, 2019, which is yet to be passed by the Parliament of India. This bill exclusively talks about the “Right to be forgotten”. Right to be forgotten has been recognized as a necessary element of the Personal Data Protection Laws as governments look to hand more control to people over information related to them. The Personal Data Protection Bill states that, “the right to privacy is a fundamental right and it is necessary to protect data as an essential facet of informational privacy”. Section 27 of the Bill has drilled down three situations in which an individual will reserve the “right to restrict or prevent the continuation of disclosure of personal data” or the Right to be forgotten, in simple terms. This will be pertinent if the information revelation is currently not important, if the agreement to utilize information has been pulled back or if the information is being utilized in opposition to the arrangements of the law. Though the ‘Right to be forgotten’ does not envisage the right to erasure of personal data, PDP Bill puts an obligation on ‘data fiduciary’ to delete the personal data if such data is no longer required to be stored. The Right to be forgotten under the PDP Bill, 2019 is a limited right and is subject to approval by the Adjudicating Officer as it can be granted only when the ‘Adjudicating Officer’ appointed under the PDP Bill, 2019 delivers a favourable order on an application made by any person.

Subhranshu Rout @ Gugul versus State of Orissa, 2020 [BLAPL No. 4592/ 2020] is also an important case in this context. It is an alleged case of sexual assault wherein the perpetrator filmed the assault, created a fake social media profile and uploaded the content on social media. The Orissa High Court dismissed the bail applications filed by the Accused and noted the lack of effective remedies for the victim to seek the removal of the objectionable material from the internet. The Court observed that there was a need for wider debate on the implementation of the Right to be forgotten since considering the facts of a case like this, there is no other feasible remedy available to the victims. While denying the bail applications of the Accused due to the heinous nature of the crime committed, the Court noted that the lack of appropriate legislation on the Right to be forgotten can supplement a victim’s confusion and regardless of the ongoing criminal proceedings against the Accused, the victim ought to consider approaching the social media platforms to have such content taken down.

Interestingly, in addition to different Indian High Courts’ judgments, the Court also examined European decisions on the Right to be forgotten in the judgement, including the European Court of Justice’s 2019 decision in Google LLC v CNIL-2019 EUR-Lex CELEX No. 62017CJ0507 and the Wales High Court’s 2018 decision in NT1 and NT2 v Google LLC-[2018] EWHC 799 (QB) Case Nos: HQ15X04128 HQ15X04127, as well as the treatment of this right under India’s proposed data protection legislation.

There was another argument in favour of Right to be forgotten before the Delhi High Court which was seen in the case of Jorawar Singh Mundy versus Union of India, 2021 W.P. (C) 3918/ 2020 & CM APPL. 11767/ 2021. The Petitioner was an Indian- American citizen who had visited India in 2009. However, a case was lodged against him under the Narcotics Drugs and Psychotrophic Substances Act, 1985. A couple of years later, a Trial Court had acquitted him in its verdict and later the Delhi High Court affirmed his acquittal on appeal by the State. After his return to the United States, he noticed that the judgment was available on online portals. He observed that it was causing a damage to his reputation. As a result of which, he filed a petition in the Delhi High Court requesting the removal of the digital records that were available online as it was posing a threat to his Right to Privacy under Article 21 of the Constitution of India. He also contended that despite of maintaining a very good academic record, he was facing trouble to get a good job as all the employers had an access to the judgement that was easily available on the internet.

The 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.”

In simple words, a question was laid down before the Court, that whether a judgment of the Court can be taken down from the internet. It had two contradicting views:

RIGHT TO PRIVACY OF THE PETITIONER

Right to Information of the general public and the transparency that is to be maintained in the judicial records.

The Court observed that the Petitioner had suffered a huge damage to his reputation and a jolt in his career due to the availability of the judgment on the internet. Hence, the Court granted him an interim relief and issued an order to Indian Kanoon to take down all the information related to the Petitioner till the final verdict.

Contrary to the abovementioned case, Justice N. Anand Venkatesh of the High Court of Madras delivered a different judgment. On August 3, 2021, in the case of Karthick Theodre versus Registrar General, Madras High Court and Ors, Justice Venkatesh stated that there shall be no Right to be forgotten when it comes to the judgments of the Court, i.e, an Accused on acquittal does not possess a right to have his name redacted from the judgment. The Court observed, “this Court honestly feels that our criminal justice system is yet to reach such standards where Courts can venture to pass orders for redaction of name of an Accused person on certain objective criteria prescribed by rules or regulations”. The Court also observed that the Right to be forgotten ceases to exist in the sphere of administration of justice. In this case, the Court vehemently expressed the need for a proper legislation on Right to be forgotten. The Court, hence, dismissed the plea of a man who was earlier convicted and sentenced by a Trial Court under Section 417 and 376 of the Indian Penal Code. Later, he was acquitted by the High Court. Therefore, he was seeking to have his name redacted from the Court’s judgment citing the Right to Privacy and dignity. The Accused further contended that the mention of his name in the Court’s judgment was causing immense damage to his reputation in the society. To this, the Court observed that Right to be forgotten is not applicable in the sphere of administration of justice particularly when it is in the judgments delivered by the Courts. Also, unlike the European Union- General Data Protection Regulation (EU- GDPR), Indian law does not contain any provision in this context. So, the Court is in view that there is absolutely no Right to be forgotten where it concerns the judgments passed by the Courts.

These two abovementioned cases are contradictory in nature where the Delhi High Court allowed an interim relief to the Petitioner whereas the Madras High Court has delivered a totally opposite judgment holding that there shall be no Right to be forgotten where it concerns the administration of justice. Here, the question is whether redaction of the person’s name would hamper the administration of justice? If the individual’s name is redacted but the judgment and the facts of the case are easily accessible on the internet, it should not fail to serve the purpose of providing the Right to information to the general public as well as maintaining the desired transparency of the judicial records.

Till the time India does not have a proper legislation on Right to be forgotten, it is totally up to the Courts on how they wish to interpret it. With the plummeting standards of investigation, a fact that has time and again been pointed out by various Courts and the harm to the Accused’s reputation, in some cases, it is important to preserve the identity of the person falsely Accused as the consequences of it can be extremely infavourable whereas in some cases.

So, the only suitable way in a situation like this appears to be to take the middle way and neither of the extreme sides. Hence, the best possible way available to the judiciary, seems to be the redaction of the name of the person but not removal of the judgment of the Court from the online portals. In simple words, this means to still have the judgment available to all but the name of the Accused can be changed. This will keep the interest of both the sides in mind and will solve both the purposes, i.e, to preserve the identity of the person and save his reputation on one hand and also backing the Right to Information granted to the general public by making the judgment accessible to them. It is incumbent upon the Courts to ensure the maintenance of transparency of the judicial records and this way will ensure that too.

It is evident that the Courts in India are overburdened with work and if people approach them with their applications for redaction of names under the Right to be forgotten, it is only going to add the stress to the Courts. If the person moves an application in the Court seeking a change in the title of the case on the first hearing itself, then that shall help in reducing the stress on the Courts. If the Courts in India can, instead of naming the person in the case title put a number or a different name, that would serve the purpose of providing justice equally. For instance, if we change the case title to Mr. XYZ versus Union of India instead of the real name versus Union of India, it would hardly make a difference to the outcome. Even in the case where the person is proved to be guilty, it is said that after serving his punishment, that person shall be considered to be a fresh man and his or her name shall not be attached to the offence he or she has committed in the past. So, if the name is not put in the case title in the first place, it shall make no difference in the administration of justice.

CONCLUSION

The Right to Privacy should be given its fair share of attention considering the evolving times. It has become an essential element in every individual’s life where no individual would like to compromise with it. Even though Right to be forgotten has not been paid much attention to, it is likely that the circumstances related to it shall be changing very soon keeping the changing needs of the society in mind. Although it has gained much attention in the international jurisprudence in the last decade and to be given the same attention in India, it is imperative for the Parliament to pass the Personal Data protection Bill which will provide a proper regulation of the right. Redaction of name from the case will be an effective way to deal with Right to be forgotten since it will keep the interests of all the concerned parties in accordance and will not hamper the administration of justice.

Wasim Beg is a Partner at L&L Partners, New Delhi, and Riddhi Goyal is a final year law student from Amity Law School, Noida.

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