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The Right to be Forgotten

The Right to be Forgotten was recently recognised by the Delhi High Court, which ordered Google and Indian Kanoon to remove a judgement. But what precisely does this right entail, and how does it relate to the Right to Privacy?

In general terms, the Right to be Forgotten refers to the ability to have some publicly available personal information about an individual erased from the internet, search engines, databases, websites, or any other public platform. The Right to be Forgotten has been recognised by the law in the European Union under the General Data Protection Regulation, or GDPR, and has been affirmed by many courts in the United Kingdom and Europe, however there is no similar law in India. Although the Personal Data Protection Bill 2019, tabled in the Indian Parliament by the Ministry of Electronics and Information Technology, which is currently being scrutinised by a Joint Parliamentary Committee (JPC) in collaboration with experts and stakeholders, did clearly include and give the Right to be Forgotten in its Clause 20, which allowed an individual to restrict or prevent the further dissemination of their personal data if that data;
  1. has served the purpose for which it was collected or is no longer necessary for the purpose.
  2. was made with the consent of the data principal under section 11 and such consent has since been withdrawn.
  3. was made contrary to the provisions of this Act or any other law for the time being in force.

However, the bill has not yet become law, but it is not as if the right is not recognised in India since there is where the courts come in. The Supreme Court recognised the Right to Privacy in Justice K.S. Puttaswamy vs Union of India in August 2017 where it ruled that Right to Privacy is an intrinsic part of the Right to Life and Personal Liberty under Article 21 of the Constitution and this is what the Right to be Forgotten has been linked to since then and in this judgement.

The Honourable Supreme Court specifically observed that the right of an individual to exercise control over his personal data and to be able to control his or her own life also encompasses his right to control his existence on the internet.

This occurred in August 2017, but a few months beforehand, two additional High Courts had the opportunity to consider this right, and each adopted two distinct paths. The Gujarat High Court, in Dharamraj Bhanushankar Dave vs State of Gujarat, decided on a petition brought by one Dharam Raj Bhanushankar Dave, who was previously acquitted in a kidnapping and murder case by the same court and requested that the judgement not be publicly available.

The Gujrat High Court refused to grant him relief noting that the petitioner had not been able to point out any specific provision of law that had been violated plus the petitioner hasnít really relied on the term and the phrase Right to be Forgotten as such but the Karnataka High Court in Sri Vasunathan v. The Registrar General took a quite different approach and recognized the Right to be Forgotten specifically and ruled that:
In sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned, it said this was being done in line with the trend in the western countries.

However, after the Right to Privacy judgement in August 2017, the High Courts have adopted a broader perspective of the matter, explicitly recognising the Right to be Forgotten and the right to be left alone.

For example, in Zulfiqar Ahman Khan v. Quintillion Businessman Media, Zulfiqar Ahman Khan petitioned the Delhi High Court, requesting the suppression of two stories written against him on the news website The Quint based on anonymous harassment charges. While the news portal removed the pieces while the case was pending in the high court, the high court additionally prohibited the substance of those two pieces from being republished during the suit's duration and in doing so.

The Delhi High Court ruled that the Right to be Forgotten and the Right to be Left Alone are two fundamental facets of the Right to Privacy, which has been declared an integral element of Article 21 of the Indian Constitution. The Orrisa High Court, in Gugul v. State of Odisha also examined the Right to be Forgotten as a remedy for victims of sexually graphic images or films frequently shared on social media platforms by spurn lovers to frighten and harass women, lamenting the lack of a mechanism to permanently wipe material from the internet in order to protect the right to be forgotten, called for a debate on the issue and said that:
Information in the public domain is like toothpaste; once it's out of the tube, you can't get it back in, and once it's in the public domain, it'll never go away,. The Kerala High Court as well recently granted the petitioner's request to have his or her personal information removed from a Google search result

The Delhi High Courtís latest Judicial order (Jorawar Singh Mundy vs Union of India) that acknowledged the Right to be forgotten, the court was considering a plea made by one Jorawar Singh Mundy, an American citizen by birth but of Indian descent, who was charged in a narcotics case in 2009 while visiting India but was cleared by both the trial and the Delhi High Court. Mundy later returned to United States and studied law and thereby informed the Delhi High Court that every time a potential employer ran a background check on him using Google, it led them to his judgement, which he blames for his lack of employment thus far.

As a result, he requested that three websites, Google, Indian Kanoon, and vLex, remove the judgments. vLex pulled it down while the case is in court while the Delhi High Court noted the irreparable harm that it may have done to Mundy's social life and career prospects, even though he was ultimately acquitted, and gave him interim protection. The judgement was ordered to be removed from Google's search results, and India Kanoon was ordered to block the judgement from being accessed through using search engines such as Google and Yahoo.

Is Right To Be Forgotten An Absolute Right?

In the sense that not every request for removal will be granted, the Right to be Forgotten is not an absolute right. The Supreme Court did provide some clarity on this by saying that the acceptance of this right does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. It basically said that it could not be deleted when the data is required for:
  1. Exercising the right to freedom of speech and expression and information.
  2. If it is necessary for compliance with legal obligations.
  3. If it is necessary for performance of a task carried out in public interest, or public health
  4. If it is necessary for archiving purposes in public interest.
  5. If it is necessary for Scientific or Historical research purpose or statistical purpose.
  6. If it is necessary for the establishment, exercise, or legal claims.
Another thing that the Delhi High Court also pointed out about absoluteness of the Right to be Forgotten in the Mundyís Judicial Order is that where a court order is demanded to be taken down, the court must consider the petitioner's right to privacy on the one hand, as well as the public's right to information, openness, and judicial records on the other.

As can be seen, India's jurisprudence on the right to be forgotten is still in its infancy, so we will have to wait and watch how it evolves over time.

Award Winning Article Is Written By: Mr.Kartikay Sharma - A student of law at VIPS, Indraprastha University.
Awarded certificate of Excellence
Authentication No: JU115960132208-8-0621

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