AN UNERASABLE MEMORY - IMPORTANCE OF RIGHT TO BE FORGOTTEN
‘Right to be forgotten’ is a concept whereby an individual would have the right to remove private information from the digital world to lead an anonymous life. It is indeed an urgent problem in the digital era to escape from one’s past since the Internet stores every data in the cloud. If there is no legitimate reason to keep data on the Internet, then it can be removed if the individual wants to. The idea of ‘Right to be forgotten’ was first developed and recognised by France. Gradually this was discussed by the European Union, Argentina and many other countries. The need to recognise the right as human rights is essential in today’s digital world. The legal implementation of the Right to be forgotten has been described as “the right to silence on the past events in life that are no longer occurring”. This broad concept is controversial and has been called “rewriting history”, “personal history revisionism”, or simply “censorship”. The concept has been raised in many case laws in India. The Personal Data Protection Bill that is yet to be passed by the Parliament includes various rights including Rights to be forgotten.
RIGHT TO BE FORGOTTEN UNDER ARTICLE 21
Article 21 of the Constitution of India says “No person shall be deprived of his life or personal liberty except according to procedure established by law”. This includes rights to equality, right to health, right to work, right to shelter etc. Right to be forgotten is one such right that comes under Article 21 of the Constitution of India. In Kharak Singh v. State of U.P, the Honourable Supreme Court recognized the right to privacy as a part of Article 21, i.e., right to life and personal liberty.
Article 17 of Chapter 3 (Rights of the data subject) of the General Data Protection Regulation (GDPR) deals with Right to erasure or Right to be forgotten. However for now the Right to be forgotten as such is not mentioned anywhere. But the right involves the privacy of an individual. Thus the Right to be forgotten can come under the right to privacy and thus under Article 21 of the Constitution of India.
HISTORY OF RIGHT TO BE FORGOTTEN
The Right to be forgotten was initially introduced in the European Union. The foundation of the right was laid down by the European Court of Justice in the case Google Spain SL v. Agencia Española de Protección de Datos & Mario Costeja Gonzalez or famously known as the Google Spain Case. In 2010, the dispute arose when Mr. Costeja Gonzalez filed a complaint against a newspaper publisher and Google with the Spanish data protection agency. The complaint of Mr. Costeja Gonzalez was concerned that whenever an internet user enters his name on the Google search page, a link of two pages of a newspaper named La Vanguardia dated January 19, 1998 and March 09, 1998 appears on the result page. These pages had personal information of Mr. Costeja Gonzalez which consisted of a case that was resolved. The case was regarding an attachment proceeding for recovery of social security debt. In the complaint filed to the Spanish data protection agency, Mr. Costeja Gonzalez requested that La Vanguardia and Google shall remove or take necessary measures to hide the personal data related to him. In response, the Spanish data protection agency denied his complaint relating to La Vanguardia newspaper as the content published was legally justified but upheld the complaint against Google as the operators of search engines were subjected to the Directives. In an appeal by Google, the European courts and the European Court of Justice observed that the one who operates the search engines comes under the definition of ‘controller’ as dealt under Article 2(d) of the Directives. Moreover, the European courts also upheld the person’s ‘Right to be Forgotten’ if the personal data concerning him/ her is no longer required for the purpose for which it was collected.
RECOGNITION OF THE RIGHT IN OTHER COUNTRIES
Right to be Forgotten in the European Union - The General Data Protection Regulation is a regulation in the EU law on data protection and privacy in the European Union (EU) and the European Economic Area (EEA). THE GDPR was adopted in 2016 and was enforceable in 2018. Article 17 of the General Data Protection Regulation (GDPR) deals with the ‘Right to Erasure’, also known as the Right to be forgotten. Under this right, an individual has the right to obtain from the controller the erasure of personal data concerning him or her. The controller is obliged to remove any such personal data without undue delay under special circumstances.
The grounds or special circumstances include: 1) The personal data which was collected is no longer required or that the purpose is over. 2) The person withdraws consent on which the processing is based according to Article 6 (1) (a), or Article 9 (2) (a) and where there is no other legal ground for the processing. 3) The person objects to the processing pursuant to Article 21(1) or 21 (2). 4) The personal data has been unlawfully processed. 5) The personal data have to be removed in accordance with a legal obligation in Union or Member State law to which the controller is subject. 6) The personal data have been collected in relation to the offer of information society services as in Article 8 (1). Under Article 17 (2) of the regulation, if the controller has already made the personal data public, then the controller is obliged to take reasonable steps to erase any such personal data. However Article 17(3) of the regulation lays down the exceptions to clause 1 and 2.
Right to be Forgotten in the United States - In the United States, the right to free speech is stronger than the right to privacy. This is a major barrier to the Right to be Forgotten. In a number of cases, the courts have held that privacy outweighs free speech or press. In 2017, a bill was proposed that the individuals be allowed to require search engines to remove information that is inaccurate, irrelevant, inadequate or excessive or that is no longer required and causes harm to the individual.
The General Data Protection Regulation became a model for many countries including the UK, Japan, Argentina, South Korea etc. In Chile, currently there are no laws dealing with the Right to be forgotten. However, a bill was debated which is yet to be resolved. In Mexico, even though there are no laws, there has been a significant case involving the right. In the case Carlos Sanchez v. Google Mexico, the Right to be forgotten was upheld but the scope of enforcement of the ruling was not determined. The Personal Data Protection Act in Peru has been recently enforced to grant the Pervian citizens the right to ask internet websites and search engines providers the emival or blocking of access to content that violates Peruvian law. In many other countries even though a law is not enforced for the Right to be forgotten, it has been protected and included indirectly.
CASE LAWS REGARDING RIGHT TO BE FORGOTTEN IN INDIA
The landmark judgement delivered by the Supreme Court in Justice Puttaswamy v. Union of India has observed the Right to be forgotten in 2018. In this case it was observed that -
“The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the internet.”
However, the issue was raised in two cases in the High Courts of Karnataka and Gujarat. The two cases that dealt with the Right to be forgotten are:- Sri Vasunathan v. The Registrar General and Dharamraj Bhanushankar Dave v. State of Gujarat and Ors.
In the case Sri Vasunathan v. The Registrar General, the right was recognised only to a certain extent. The remedy was restricted to copies of the order yielded on an internet search but did not deal with the erasure of certified copies of the order on the High Court website. In this case the Right to be forgotten was identified in a narrower sense and failed to consider the broader viewpoint. In the case Dharamraj Dave v. State of Gujarat, Gujarat High court pointed out that the petitioner was not able to establish how uploading of judgement violated Article 21 of the Constitution of India. There isn’t a clarity on what rules to be imposed to protect the right and about the restriction that can be imposed for the same.
In the High Court of Delhi in the case Jaideep Mirchandani & Anr. v. Union of India Ministry of Communication and IT & Ors., an order was issued on 17th August, 2021 where the Right to be Forgotten was recognised. The petitioners are aggrieved by the online articles published since it adversely affected their employment, career prospects, personal life and social life. Justice Rekha Palli has sought response from Centre, Google and Times of India.
In another case called Ashutosh Kaushik v. Union of India, on 22nd July, 2021, an order was issued by the same court recognising the Right to be Forgotten. The court in the upcoming cases will give a more broader view on the Right to be Forgotten. Also the confusions and lack of clarity will hopefully be dealt with in these and more cases in the future.
In today’s world every data of an individual is stored in the Internet and when it's not erased it can cause severe harm to the personal life of the person. “The Right to be Forgotten” is an essential human right where an individual should be given the privacy required when it comes to his personal life. One should have his personal data which are unnecessary to the public under his control. In practise, it is indeed difficult to remove the data in today’s world. When an individual posts something, for instance a picture, on the internet then it can be saved and reposted by another party. To have a control on this and to erase the image completely may become very difficult in certain circumstances. Inshort, it would be easy to delete the data of an individual if it has not been reposted, but the scenario becomes very difficult once it's reposted. If the person who reposted is known, then it should be removed. But in this digital era it sometimes becomes difficult to trace the person. Hence, it is necessary to recognise this right. The Personal Data Protection Bill that is yet to be passed recognises the Right to be Forgotten and it should be implemented. Also, as we have discussed above, the case laws in India give a very narrow view on this right and lack clarity. It is necessary to clear the confusions and protect this right as the human right of an individual.
1963 AIR 1295
WRIT PETITION (CIVIL) NO. 494 OF 2012
W.P. No. 62038/2016
SCA No. 1854 of 2015
W.P. (C) 8557/2021
NAME - ATHIRA SURESH
YEAR AND COURSE OF STUDY - 4th year BBA LLB
COLLEGE NAME - SREE NARAYANA GURU COLLEGE OF LEGAL STUDIES, KOLLAM