THE RIGHT TO BE FORGOTTEN - AN INDISPENSABLE FACET OF PRIVACY

AUTHOR- SHREYAM SHARMA

EDITOR- SHRESTHA KHATRI & RIYA LUHADIA

INTRODUCTION:

In an age when “You are what Google says you are” [1], the increasing need to protect an individual’s privacy regarding his online footprint becomes crucial to secure one's inviolate personality [2] and his right to public non-interference in private matters. While the Indian Constitution does not explicitly guarantee the fundamental right to privacy, the famous 2015 Justice K. S. Puttaswamy & Another vs. Union of India [3] case read the right to privacy into article 21 of the Constitution of India. One of the lesser celebrated areas of the judgment was the concurring opinion of Hon’ble Justice Sanjay Kishan Kaul on the Right to be Forgotten (RTBF), both in virtual and physical spaces, something which is inherently implicit in the fundamental right to privacy [4]. The right to be forgotten can be defined as the right to restrict, detach, erase, or rectify the publication of private information on any website that can be deceptive, humiliating, immaterial, or anachronistic. [5]

Justice Kaul, in his opinion, highlighted the incessant increase in the potential of computational analysis of digital footprints and private data to generate ‘big data’ that can track movements and invade one’s personal space.[6] The need to provide individuals with the right to erase the existing data in physical and online spaces which is “no longer necessary, relevant, or is incorrect and serves no legitimate interest” is imperative. One’s right to wield control over his personal data and to have autonomous control over his/her life also incorporates the right to control his existence on the internet. [7]

ANALYSING THE RIGHT TO BE FORGOTTEN THROUGH THE INDIAN LENS:

With the Pegasus spyware allegations questioning the existential courtesy of one’s privacy, the question of the Right to be Forgotten has again gained up momentum with the recent Delhi High Court Judgement. The Court, in its recent order in X v. Https://www.youtube.com/watch?v=iq6k5z3zys0 & Ors [8], recognized the significance of the RTBF and safeguarding an individual’s privacy. The case essentially involved a Bengali actress’s plea seeking restraint on the publication of her frontally naked video on YouTube. [9] The court upheld the right to be “left alone” and to “be forgotten” in furtherance of one’s entitlement to protection from the intrusion of privacy by strangers and anonymous seekers. [10] The judgment serves as a beacon of hope in the growing waters of privacy jurisprudence by recognizing the rights to be forgotten and erasure as implicit nuances of privacy.

While the Indian Jurisprudence on the issue could not establish conclusively the RTBF as a statutory right, the debate is ongoing. In yet another order given by the Delhi High Court recently [11], it directed the Indian Kanoon website along with Google to remove search results about the plaintiff’s acquittal in an NDPS case. The repercussions of denial of the RTBF on the individual’s social life and career prospects are grave and materially hamper one’s interests. The acquittal order which had been uploaded on the Indian Kanoon website was a google search away from any prospective employer conducting background research on the candidate, which affected his ability to secure job opportunities. Although a balance should essentially be struck between the transparent availability of judicial decisions and one’s right to be forgotten, the court inclined in the favor of safeguarding an individual’s privacy and autonomous liberty.

The need for recognizance of the RTBF as a statutory right was brought up by Hon’ble Justice Sanjeeb Kumar Panigrahi of the Orissa High Court in Subhranshu Rout Gugul vs. State of Orissa [12], wherein the court held that allowing sexually explicit forms of multimedia of rape victims to subsist on social sites blatantly violates the victim’s privacy. The threat of unfettered embezzlement of personal data and surreptitious outrage of a victim’s modesty are real consequences of a lack of recognition of the RTBF.In furtherance of similar objectives and categorically emphasizing on the ‘Right to be Left Alone, the court in the case of Zulfiqar Ahman Khan vs M/S Quintillion Business Media [13], banned the republication of defamatory articles against the plaintiff that lacked merit and had the potential of compromising his social and professional reputation.

THE DIRE NEED FOR A LEGISLATION:

A bird-eye view of these judgments that have started a discussion on the RTBF under the umbrella of Privacy all lead to the call for a well-tailored, institutionally specific, procedurally sound, and principally confirming statute apart from a judicial policy laid down by the judiciary regarding the information processed by them. The Draft Personal Data Protection Bill, 2019, which hasn’t seen the light of the day after being delayed in parliamentary committees [14] has an article dedicated to the “Right to be Forgotten”. Articles 18 (1) (d) and 20 (1) of the draft legislation identifies the Right to Erasure and the RTBF if (a) the information is no longer necessary to be uploaded, or (b) the consent to publish such information has been withdrawn or (c) any disclosure or publication was undertaken in violation of any contemporary law [15].

As crucial it is to promote one’s RTBF, equally crucial is to balance the right with the Right to Free Speech and Expression and one’s right to receive information. [16] The Committee Report on the Draft Personal Data Protection Bill [17] laid down a five-pronged statutory test to balance out clashing interests. The five primary tests that have also been taken into Article 20 (3) of the Draft Personal Data Protection Bill [18] include: (i) the susceptibility of the personal data sought for restriction (ii) the extent or scale of the divulgence required to be restricted (iii) the role or public status of the data principal (iv) the data’s contemporary relevance and (v) the form of the disclosure and the activities of the data fiduciary.

The idea of distributed regulation which will involve the deputation of authority to private firms such as Google or Microsoft or Yahoo [19], in consultation with the adjudicating authorities, to evaluate and assess the requests made for restriction or erasure opens up a debate on the extent and degree of intermediary regulation. While this delegation of evaluative authority comes with an added advantage of increasing task enforcement and the execution of the RTBF, placing such unfettered powers in the hands of private regulators also poses the actual risk of unconstitutional free speech regulation. The freedom to publicly and freely criticize political and public figures may also be jeopardized by dishonest requests to data fiduciaries for the removal of important public information. [20] A careful assessment of the extent of such rights entrusted in data fiduciaries is essential to certify that human rights issues pertaining to free speech and the right to information of any citizen are not excessively restricted, while also providing for a safe and efficient procedure to exercise the RTBF.

ANALYSING THE RIGHT TO BE FORGOTTEN THROUGH THE INTERNATIONAL LAW LENS:

The RTBF has also received increasing prominence in the European Court decisions and legislation introduced by the European Council. [21] The famous 2014 case brought by Mario Costeja Gonzalez, who had filed a complaint with the Spanish Data Protection Agency to remove google search results from two pages that included public notices of his house’s auction because of inability to pay social security debts, is a landmark in the Privacy jurisprudence [22]. The CJEU established the RTBF regarding the vulnerability of the information and its consequences on the plaintiff’s private life. Critically, the court identified that search engines can penetrate fundamental privacy rights because of their ability to pull up vast amounts of private data that would otherwise remain out of reach.

The court based its ratio on the ‘right to have his data erased under Article 12 (b) of the EU's 1995 Data Protection Directive [23] which provides for the right to get from the data controller an erasure or blockade of personal information. This case set the right precedent for the Right of Erasure to be incorporated in The General Data Protection Regulation, 2018[24] which replaced the 1995 directive. It appears in Article 17 of the GDPR, which states that the data principal may get from the fiduciary, the retraction or elimination of his/her private information without undue delay, and the fiduciary would be under a legal obligation to do so.

India, also having ratified the International Covenant on Civil and Political Rights, is bound by its article 17[25] which protects one’s privacy against arbitrary or unlawful interference with personal life, family, home, or correspondence or on unlawful attacks on honor and reputation. General Comment No. 16[26] on Article 17 of the ICCPR categorically mentions that any file which stores the personal data of an individual can be rectified or eliminated if it contains incorrect personal data. With developing international jurisprudence on the right to privacy and its nuanced concepts, the call to recognize the RTBF in India is getting stronger.

CONCLUSION:

The limitless digital space, with its ever-increasing branches and intrusion into our personal lives, the idea to imbibe limitations on online memory is progressive and crucial. It is crucial for the preservation of the Habermasian divide between the public and private sphere [27], which safeguards the individual’s choices, actions, and decisions made with a certain autonomy free from public intrusion. The RTBF is an integral part of individual autonomy, the ability to control the distribution or publication of personal information, and, hence, a very important dimension of individual liberty and dignity. In the age of media trials and unbridled interference into private affairs, the RTBF is the pillar that would uphold the prominence of choice, the choice to remain ‘forgotten’.

REFERENCES [1] 3 Megan Angelo, You Are What Google Says You Are, Wired, Feb. 11, 2009. http://www.wired.com/business/2009/02/you-are-what-go/. [2] Warren and Brandeis, The Right to Privacy, 4 Harv L Rev 193 (1890). [3] Justice K S Puttaswamy v. Union of India & Ors., (2017) 10 S.C.C. 1 (India). [4]Id. [5] Michael J. Kelly and David Satola, The Right to be Forgotten, University of Illinois Law Review, 2017, at 1,5. [6]Puttaswamy, (2017) 10 S.C.C. 1 (India). [7]Id. [8]CS(OS)392/2021. https://enalsar.informaticsglobal.com:2278/pdf_upload/1629825342565877432021-1-399323.pdf. [9]Nupur Thapliyal, Entitled To Right To Be Forgotten & Protection From Invasion Of Privacy: Delhi High Court Grants Interim Relief To Bengali Actress, Live Law (September 14,2021,5:37 PM). https://enalsar.informaticsglobal.com:2278/news-updates/delhi-high-court-right-to-forgotten-directs-removal-of-bengali-actress-videos-privacy-180322. [10]Id. [11] Jorawer Singh Mundy v. Union Of India &Ors, (2021) SCC OnLine Del 2306 (India). [12] (2020) SCC OnLine Ori 878 (India). [13] (2019) SCC OnLine Del 8494 (India). [14]Sobhana K. Nair, Moredelays on Data Protection Bill as panel reopens debate, The Hindu (September 14,2021,5:39PM) https://www.thehindu.com/news/national/more-delays-on-data-protection-bill-as-panel-reopens-debate/article36344706.ece. [15] The Personal Data Protection Bill, 2019 (Bill No. 373 of 2019). [16] Jeffrey Rosen, The Right to Be Forgotten, 64 Stanford Law Review Online (2012) at p.88. [17]A Free and Fair Digital Economy Protecting Privacy, Empowering Indians, Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, 78, 78-80 (Ministry of Electronics and Information Technology)https://prsindia.org/files/bills_acts/bills_parliament/2019/Committee%20Report%20on%20Draft%20Personal%20Data%20Protection%20Bill,%202018_0.pdf. [18]Supra note at 16. [19] Abraham L. Newman, What the "right to be forgotten" means for privacy in a digital age, 347 Science AAAS 507, 507- 508 (2015). [20]Id at 508. [21]Edward Lee, The right to be forgotten v. free speech, 12 ISJLP, 85 (2015); Rolf H Weber, The right to be forgotten: More than a Pandora’s box, 2 J. Intell. Prop. Info. Tech. & Elec. Com. L, 120 (2011); Owen Bowcott, Right to be forgotten, could threaten global free speech, say NGOs, The Guardian, September 14,2021,5:37 PM). [22] 1 Google Spain SL, C-131/12, ¶ 14. [23] DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, 24 October 1995. Available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995L0046&from=EN. [24] Regulation (EU) 2016/679 of The European Parliament and of The Council, Official Journal Of the European Union, L119/43 (27 April 2016). [25]International Covenant on Civil and Political Rights, art. 17, Dec. 16, 1996, 999 U.N.T.S. 171. [26]UN Human Rights Committee (HRC), CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (8 April 1988), https://www.refworld.org/docid/453883f922.html [27]Goodman D, Public Sphere and Private Life: Toward a Synthesis of Current Historiographical Approaches to the Old Regime. History and Theory, 31(1), 1–20(1992).

*The Author is a 2nd-year B.A.LLB (Hons) student at National Academy of Legal Studies and Research, Hyderabad, Telangana.

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA does not hold any liability arising out of this article.