The right to be forgotten on internet

Right to be Forgotten on the Internet

Ashutosh Kaushik moved Delhi High court??to enforce ‘right to be forgotten’ by??seeking removal of his past altercations and other personal content from internet. Is this right recognized and enforced by Indian courts even though PDP bill 2019 is still underway??

The availability sensitive personal information on internet has devastating psychological consequences on people’s lives that may even thwart their employment prospects.?

What is Right to be Forgotten?

‘Right to be Forgotten’ or ‘Right to erasure’ as referred in the European Union entitles an individual to seek removal of their personal information or data present online on??search engines social media or websites.??The right to be forgotten is found in Art. 17 of the GDPR. According to EU law, Personal data ought to be erased immediately where the data is no longer needed for their original processing purpose, or the owner of data has withdrawn his consent and there is no other legal ground for processing, the data owner has objected and there are no overriding legitimate grounds for the processing, or erasure is required to fulfil a statutory obligation under the EU law or the right of the Member States. However, an organisation’s right to process one’s data can trump the right to be forgotten when data is being processed to comply with any law, it is used to exercise freedom of speech or expression, perform a task in public interest, or for scientific, historic or statistical research, or data is being used to establish a legal defence or a claim.

The Right to be forgotten has its genesis in the decision??of the Court of Justice of the European Union in 2014 inGoogle?Spain SL, Google Inc. v. Agencia Espa?ola de Protección de Datos, Mario Costeja González?ILEC 060 (CJEU 2014)?where the Court of Justice held?that?citizens have a right to request that search firms, such as Google, that gather personal information for profit??remove links to private information when asked, when the information is no longer relevant, or is inadequate or necessary.

Is right to be forgotten recognized by Indian courts??

In India, there is no statutory provision under current data protection law, the Information Technology Act, 2000 or the rules issued thereunder, that provides an individual with the Right to be Forgotten. However, there is a comprehensive new data protection law proposed to be introduced in India in the form of the Personal Data Protection Bill, 2019 which carves out the right under Section 20 according to which “a?data principal?has a right to prevent the?data fiduciary?from using such data or information if data disclosure is no longer necessary, the consent to use data has been withdrawn or if data is being used contrary to the provisions of the law.”

Though there may not be a statutory right, Indian courts have interpreted right to privacy guaranteed as a fundamental right to include right to be forgotten in certain cases.??

The Supreme Court in its landmark case?K.S. Puttaswamy v. Union of India?(2017) 10 SCC 1?held that the right to be let alone is an essential part of the autonomy and the privacy of an individual. The Supreme Court had also highlighted the importance of the Right to be Forgotten in this case, and stated that if India were to recognize the Right to be forgotten as it exists under the GDPR today, “it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data or information is no longer necessary, relevant, or is incorrect and serves no legitimate interest.” The Supreme Court had also observed?that exercise of an individual's Right to be Forgotten was subject to certain limitations, it could not be exercised where the information in question was necessary for (a) exercising the right of freedom of expression and information; (b) compliance with legal obligations; (c) the performance of a task carried out in public interest or public health;(d) archiving purposes in the public interest; ( e) scientific or historical research purposes or statistical purposes; or (f) the establishment, exercise, or defence of legal claims.”

Interpretation of the Right to be forgotten by Indian Courts

The Delhi High Court in the decision of?Zulfiqar Ahman Khan v.?Quintillion Business Media (P) Ltd.,?2019 (175) DRJ 660??recognized the “right to be forgotten” and ‘Right to be left alone’ and right to reputation as an integral part of individual’s existence.?Khan had filed a defamation suit against Quintillion Business Media and sought a permanent injunction to take down the original articles and to remove references to the articles from search engines. The court ordered the removal of two allegedly defamatory articles from media house, Quintillion Business Media’s web port Quint.com against Zulfiquar Khan that contained #MeToo allegations. The Court held that since Quint.com had been ordered to remove the claims, other news platforms/websites are also not allowed to republish those claims.?

In a recent order by Delhi high Court in?Jorawer Singh Mundy v. Union of India & Ors.?W.P. (C) 3918/2021 Petitioner ,an American Citizen sought removal of links to judgements published online wherein he was acquitted after false case made against him under the Narcotics Drugs and Psychotropic Substances Act, 1985 was dismissed. He was finally acquitted in the case. Petitioner after his acquittal had travelled back to the United States and pursued law and faced??a serious disadvantage due to the judgment??being available on Google search to any potential employer who would conduct background check. Petitioner sought removal of those search engine links which published the judgement.?The Court held that the Petitioner is entitled to some interim protection, while the legal issues are pending adjudication by the Court. Therefore, Court directed Indian Kanoon to block the said Judgment from being accessed by using search engines such as Google/Yahoo etc.

In yet another case, High Court of Orissa in?Subhranshu Rout v. State of Odisha?BLAPL No. 4592?of 2020?had also examined the “Right to be Forgotten” and the Right to Privacy. The case involved an accused who had uploaded sexually explicit pictures of victim on social media. The court observed that??“there were no orders passed on the removal of the photos and videos of the from Facebook servers as the present case was a bail application, and the victim had not raised the issue of her right to privacy and for the content to be deleted”.?The Court however held that?in cases such as this, either the victim herself or the prosecution may, seek appropriate orders to protect the victim’s fundamental right to privacy, by seeking appropriate orders to have such offensive posts erased from the public platform, irrespective of the ongoing criminal process.

The Karnataka High Court made a referred to “to the trends in Western Courts”??while considering this right to be forgotten??in?(Name redacted) vs. The Registrar General, High Court of Karnataka and Ors Writ Petition No. 62038 of 2016 (GM-RES).The Petitioner's daughter sought a declaration that there was no marriage between her and the defendant, and argued that if her name was visible as part of the order in public domain, it would have repercussions even affecting the relationship with her husband and her reputation in the society. The Court held in the Petitioner's favour, and ordered the court registrar to redact her name from the cause title and the body of the order.

Thus, Indian courts have justifiably begun to grant reliefs upholding the right to be forgotten and direct deletion, removal of personal data from search engines, websites, or social media that infringes one’s data privacy, right to be left alone, or is inaccurate, misleading, or irrelevant.?The availability sensitive personal information on internet has devastating psychological consequences on people’s lives that may even thwart their employment prospects.?