THE RIGHT TO BE FORGOTTEN: A TRAIL OF CONTROVERSY AND CONFLICT

ABSTRACT

With the recognition of one’s rights comes the need for its enhanced and liberal interpretation to widen its reach as has happened with the Right to Privacy in the recent past. Nonetheless, the Right to Be Forgotten (‘RTBF’) as a subset of this right is still struggling to place its foot in India. However, it is discernible that the right has begun to be recognized by High Courts as a part of individual’s right to exercise control over the publication of their private affairs through online channels. This entails an analysis of the position of the right to be forgotten in India and the extent of its applicability vis-à-vis the existing legal framework. The purpose of the paper is to stress on the need to examine and implement legally thereof data protection laws to assess whether to recognize right to be forgotten and to determine the extent of its applicability.

 

 

THE RTBF- ITS GROWING SIGNIFICANCE UNDER THE GOOGLE-SPAIN VERDICT

The right to be forgotten protects the right to privacy of individual by allowing him/her to get the personal information removed from public domain provided the information is inaccurate, irrelevant or inadequate.[i] Globally, the right gained momentum after the European Union recognized it in a landmark case in 2014.[ii] The 1995 Data Protection Directive of EU was based on the reasoning of social integration. The same has also been approved in Russian Parliament.[iii] Countries like Argentina, Brazil and South Africa are also executing similar policies in this regard.[iv]

 

The right has also been correspondingly beefed up by its codification in the General Data Protection Regulation (‘GDPR’).[v] It is pertinent to look at article 17 and 19 of the GDPR. Article 17 has significantly created a right for a the data subject to get the personal data expunged on demand and a corresponding obligation on the controller to remove such data in a timely manner upon satisfaction of certain key requirements..[vi] These inter alia include lack of necessity of retention of data, withdrawal of consent as per the provisions of the Regulation, objection by data subject with lack of overriding grounds to such objection, unlawful processing of such data and the need for erasure owing to legal compliance.[vii] The obligation of data controller extends to communicating data erasure to the respective recipients of such data disclosed prior to rectification or erasure and providing the data subject the details of those recipients upon request.[viii] The reference to the western world is significant as a recent Indian judgement concerning this right has referred to the western trends pertaining to the RTBF.

 

The significance of RTBF as a right in India emerged and has become prominent since Google Spain Case[ix] in 2014. It tried to address several polemical issues concerning the accountability in case of violation of data protection rights and, most importantly, weighing RTBF as against public relevance. While the case blatantly held that the right to privacy overrides the public interest in personal information unless the person holds a public role, the same is controversial in case of India in terms of right to information.[x] The accountability of the search engine is justified based on the threat of accessibility of sensitive personal information and also because of the active roles they play in deciding as against user’s of information and ranking these as per user’s request.[xi] This calls for a greater accountability of search engines and not only the websites’ publishers to protect privacy rights of person’s requesting of removal of personal data which is found to be “inadequate, irrelevant or no longer relevant or excessive.”[xii] Right to be forgotten despite never being a legal right in India is gradually taking shape. The recent landmark judgements recognizing its existence and deliberating upon the instances of its applicability so as to shield individual control over their personal information over the internet is making this an issue which can no longer be condoned.

 

 

GAINING MOMENTUM IN INDIA – THE RIGHT TO BE FORGOTTEN

To understand the position of RTBF in India, there is a need to look into the status of right to privacy. Although right to privacy was not provided in the constitution originally, a series of Supreme Court judgements recognized it as a fundamental right under Article 21 of the Constitution of India.[xiii] The RTBF has failed to receive the acknowledgement by the pillars of Indian Legal System. The only mention of the right can be found in §228A of IPC and §23 of POSCO Act which restricts its applicability to sexual offences against women and children respectively keeping in mind their vulnerability.[xiv] The legal framework has tried to incorporate some of its features not only through criminal law but also under Information Technology Act, 2000. §43A of this act makes it mandatory for Corporate Body to execute reasonable practices to protect personal information.[xv] However, a series of recent judgements on the issue have raised pertinent questions concerning its recognition as a legal right by drawing analogy from western trends. The Karnataka High Court judgement which upheld the woman’s right to be forgotten under a criminal complaint filed against her simultaneous to marital dispute has provided an impetus to deliberate upon this right.[xvi] Despite its criticism, this is still significant given there is no codified data protection privacy laws in India. The diverging views of high courts in this matter is evident from the judgement of Gujarat High Court[xvii] denying the right to be forgotten basing its reasoning on the issue of ‘reportable’.[xviii] The Delhi HC is currently dealing with a case involving request for removal of a judgement from online database whose decision would be a major pathway to discern the Indian Legal perspective on RTBF.[xix] This evinces obscurity pertaining to right to be forgotten in India. This calls for a structured legal framework providing for data protection laws.

 

 

ADDRESSING THE CONTROVERSIES CONCERNING RTBF

The criticisms to RTBF lurk around right from House of Lords in Google-Spain Case w.r.t. the permanence attached to the information once it is published over the internet. The pace with which the information becomes accessible through internet was beyond contemplation while this right was taking share around the world. The information accessibility in electronic form coupled with the lack of accountability for the same is making the right somewhat redundant in the current socio-legal and technological milieu. The issue remains as regards the accountability of a search engine for the content published by the websites’ publishers. It is undeniable that these search engines have control over the users but the accountability w.r.t. the websites’ publishers on whom they have little control is still questionable.

 

The controversies aren’t only limited to accountability of search engines. Looking from India’s viewpoint it demands attention over the existing constitutional rights in conflict with the RTBF such as free speech and right to information. Also, there may be instances of its misuse as evident in a case where a Rajya Sabha member obtained injunction against a website for publication of two articles.[xx] The basis of enforcement of the Right seems to be the nature of information. Extremely sensitive information affecting personal life of an individual needs protection from unnecessary dissemination. This proposed right violates preexisting and a recognized prominent constitutional right, i.e., right to freedom of speech and expression.

 

However, both these rights aren’t absolute and subject to certain limitations. And considering the equal stature of both the rights, it should be left to the prudence of court while adjudicating to consider whether or not it has drawn a perfect balance and not condoned one for the other. The justification for this argument lies in the fact that freedom of speech entails certain duties (negative rights) involve protection of reputation of others.[xxi] For instance, a matter concerning public interest will likely to have right to information outweighed against right to free speech. Likewise, matters concerning matrimonial disputes result in disclosure of vital personal information in the court of law and the dissemination of which might affect of interests of one of the parties.[xxii] Providing the RTBF entails reasonably curbing right to free speech. One of the innovative ways to grapple the issue is the private agreements among search engines and data controllers especially valid for India which doesn’t have any data protection legislation.[xxiii] Instead of unnecessary legislation, the data controllers can have a private setting whereby they can address the issues concerning publication of immaterial or inadequate information and the imposition of law governing the same can be avoided.

 

 

ESPOUSING IMPLEMETATION OF RTBF- AN OVERVIEW OF ITS EFFECTS

While the founders of our constitution never perceived the challenge of such conflict between the two rights, the same needs resolution as against the right to information and RTBF. Taking cognizance of the fact that instances of personal data which has lost its relevance over time (such as in case of prosecution and later acquittal) when accessed over the internet has an appalling effect on a person’s life should be considered a valid argument to support the implementation of the RTBF. The mere fact that it can be used to suppress material information of public importance can’t be used as an excuse to prevent the right from taking shape in India.[xxiv]

 

The best and the most obvious way of successful implementation of the Right is to give recognition by way of statutory legislation. While coming out with the statute should ideally draw references from the nations currently adopting such Rights particularly the EU so as to correct the problems in those legislations. If the content objected by the individual affects public interest to an extent greater than the privacy rights of that individual, then the right can be limited to that extent.[xxv] With respect to India, the extent to which it is provided is only sexual offences and we need to look at the scope it can be extended to the limit to which it doesn’t amount to censorship.[xxvi]

 

However, one pertinent issue which hovers around the implementation of RTBF is whether deletion from a search engine or from a source would lead to permanent removal or not. The workability of regulation like GDPR in India is of prominent concern where the obligation arises from data beyond the control of data controller akin to the case of social media and social networking.[xxvii] Also, deletion of public documents as the one argued in recent Delhi High Court case seems tantamount to expunging a judgement categorically.[xxviii] While there is a need to recognize this as a right in the light of protection of individual reputation from unnecessary harassment, there should also be justifiable grounds of the scope of the right. It must be ensured, in my opinion, that the right to freedom of speech should not be compromised at any stage as it is fundamental to the constitution as opposed to the RTBF which is yet to set its foot in Indian Legal System.[xxix]

 

 

CONCLUSION

Amidst doubts and chaos pertaining to granting the right to be forgotten especially after the heated global debate over the Google Spain case, a more pragmatic and simplistic approach of weighing its pros and cons leads to the belief that the right should be affirmed in India in the light of espousal of right to privacy. At the same time due analysis of the global legislations in this regard and perusal of Indian legal scenario to appraise its suitability vis-à-vis the other conflicting rights is required. Reference can equally be drawn from codified and comprehensive version of protection of the right in form of GDPR. However, these developments should be taken with a pinch of salt considering the socio-legal difference which may obstruct in the operability of the right. The recognition of this right should implicate a certain degree of restraint to facilitate peaceful existence of other contradictory legal rights while ensuring that the rights such as that of free speech are not compromised.

 

 


 

Deepti Pandey is a Second Year B.A. LL.B (Hons.) student at The West Bengal National University of Juridical Sciences, Kolkata.

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[i]  Jafferey Rosen, The Right to be Forgotten, STANFORD LAW REVIEW (February 2012), Available at https://www.stanfordlawreview.org/online/privacy-paradox-the-right-to-be-forgotten/ (last visited on 29/07/2017)

[ii] Supra ii

[iii] Alison Williams, Russian Parliament Approved Internet Privacy Bill, Reuters, Available at http://www.reuters.com/article/us-russia-internet-idUSKCN0PD1OQ20150703 (last visited on 29/07/2017)

[iv] George Soroka, How to Disappear Completely, Foreign Affairs, Available at https://www.foreignaffairs.com/articles/europe/2015-11-16/how-disappear-completely (last visited on 29/07/2017)

[v] Regulation (EU) 2016/679, General Data Protection Regulation, Available at https://gdpr-info.eu/issues/right-to-be-forgotten/ (last visited on 29/11/2018).

[vi] Id.

[vii] Art. 17, Regulation (EU) 2016/679, General Data Protection Regulation, Available at https://gdpr-info.eu/issues/right-to-be-forgotten/ (last visited on 29/11/2018).

[viii] Art. 19, Regulation (EU) 2016/679, General Data Protection Regulation, Available at https://gdpr-info.eu/issues/right-to-be-forgotten/ (last visited on 29/11/2018).

[ix] Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario CostejaGonzález

[x] Elena Esposito. Algorithmic memory and the right to be forgotten on the web, Available at  http://journals.sagepub.com/doi/pdf/10.1177/2053951717703996 (Last visited on 29/04/2018)

[xi] Id. vi

[xii] Id. vii

[xiii] Kharak Singh v. State of U.P., 1963 AIR 1295

[xiv] Alok Prasanna Kumar, ‘The Right to be Forgotten’ in Indian law, ECONOMIC AND POLITICAL WEEKLY, (Marxh 18, 2017),  Available at http://www.epw.in/system/files/pdf/2017_52/11/CL_LII_11_18032017_Alok_Prasanna_Kumar.pdf ,(last visited on 29/07/2017)

[xv] Prashant Iyenger, Privacy and the Information Technology Act — Do we have the Safeguards for Electronic Privacy?, (April 07, 2011), Available at https://cis-india.org/internet-governance/blog/privacy/safeguards-for-electronic-privacy (last visited on 29/07/2017)

[xvi] Sri Vasunathan v. The Registrar General,  2017 SCC OnLine Kar 424; Amber Sinha, The Right to be Forgotten- A Tale of Two Judgements, THE CENTER FOR INTERNET & SOCIETY (April 07, 2017),  Available at https://cis-india.org/internet-governance/blog/right-to-be-forgotten-a-tale-of-two-judgments (last visited on 29/07/2017)

[xvii] Dharamraj Bhanushankar Dave v. State of Gujarat & Ors.

[xviii] Supra 9

[xix] Arunima Bhattacharya, In a First An Indian Court Upholds the Right to be Forgotten, (February 03, 2017), Available at http://www.livelaw.in/first-indian-court-upholds-right-forgotten-read-order/ (last visited on 29/07/2017)

[xx] Supra vii

[xxi] Hannah Maslen, on the Right to be Forgotten, (March 16, 2014), Available at http://blog.practicalethics.ox.ac.uk/2014/05/on-the-right-to-be-forgotten/ (last visited on 29/07/2017)

[xxii] Supra vii

[xxiii] Edward Lee, The Right to be Forgotten v. Free Speech, JOURNAL OF LAW AND POLICY,  Available at http://moritzlaw.osu.edu/students/groups/is/files/2016/09/7-Lee.pdf (last visited on 29/07/2017)

[xxiv] M. Garcia-Murillo, The right to be forgotten: its weaknesses and alternatives, Available at http://www.academia.edu/8583508/The_right_to_be_forgotten_its_weaknesses_and_alternatives (last visited on 29/07/2017)

[xxv] Raman Jit Singh Cheema, In India, the “right to be forgotten” is in the hands of the Delhi High Court, (November 09, 2016), ACCESS NOW,  Available at https://www.accessnow.org/india-right-forgotten-hands-delhi-high-court/ (last visited on 29/07/2017)

[xxvi] Supra vii

[xxvii] Jaspreet Singh, GDPR: The implications of the Right to be forgotten aspect of the data protection legislation, May 26, 2018), THE ECONOMIC TIMES, Available at https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/gdpr-the-implications-of-the-right-to-be-forgotten-aspect-of-the-data-protection-legislation/articleshow/64329304.cms (last visited on 29/11/2018)

[xxviii] Supra xviii

[xxix] Nikhil Pahwa, Case Filed in Delhi High Court to Determine the Right to be Forgotten in India, (May 05, 2016)MEDIANAMA, Available at  https://www.medianama.com/2016/05/223-right-to-be-forgotten/ (last visited on 29/07/2017)

Deepti Pandey

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