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Waiting for Legislative Assent on the Right to Be Forgotten

The internet never sleeps and the internet never forgets

In light of the realities of our current digital world, it is important to remember that not everything on the internet is desirable, especially for the people who are the source of inspiration of that content. Any content can infiltrate borders and be viewed by an unbelievable wide audience because of the Internet's far-reaching influence.

This gave birth to a brand-new concept: The Right to Be Forgotten. This right has far-reaching implications for hotly disputed and discussed Internet policies including freedom of expression and online privacy. These concepts of privacy, as well as freedom of speech also includes the ability to choose and determine the content's existence.

As a result, if citizens' right to be forgotten is recognized and granted, you can request the removal of specific web sites from search engine results, as well as the erasure of personal data that you do not want to appear on search engines.[1]

Purpose of Right to Be Forgotten

Right to be forgotten can have information, videos, or images removed from specific online records, making it impossible for search engines to identify them. Thus, granting people such rights would enable them to easily get offensive content regarding them removed from the public domain which is a constant source of embarrassment for them.

The origins of this right can be traced back to French law on the Droit a L'oubli, or "right to oblivion." This right was created by French Jurists with the same purpose and intention. By exercising this right criminal were allowed to object to the publishing of information about their case after they had completed their sentence.

Though the purpose and application of the right seems obvious and necessary, especially when seeing it in consonance with right to life, the global application and adaptation of such a right is not only contentious, but also dubious, particularly given the ambiguity of current Court decisions and statutes. In India, we are currently in the same scenario. Despite the fact that courts are progressively recognizing the right, it remains un-enshrined in all relevant statutes.

Additionally, there appears to be a clash with the long-cherished right to freedom of expression, which some have labelled a new form of Internet censorship. But in the recent times in the landmark Google Spain case, the Court of Justice of the European Union established that personal privacy outweighed the interest in free data flow.[2]

Nonetheless, the Right to Forget will provide significant benefits to those who are affected by the Internet's unforgiving memory, in the sense that it will remove content about their past mistakes and other offensive content that was posted as a medium of revenge and still continues to affect their present and future. Their future prospects may ultimately improve if this right is exercised, particularly in areas like job stability, social respect, and mental and emotional rehabilitation, which the existing impugned presence does not permit.

Judicial View of Right to be Forgotten

Based on a recent flurry of writs and orders in Indian courts, the right to be forgotten looks to be gaining popularity in India. Because this right concerns the right to privacy, a person exercising this right can knock on legal doors to request that their personal data or information be removed from online resources[3]. According to the initial proponents of the right to privacy in the United States, it is a right that essentially implies "right to be left alone."

Taking this a step further, the right to be forgotten is about recovering control over one's online personal information � the freedom to remove irrelevant content after a predetermined amount of time and start over. The importance of retaining data for a specific time period can be well understood from the recent uproar caused by the new WhatsApp User Policy 2021.

There have been various cases filed in Indian Courts where a person finds himself in a situation where he no longer wants his personal information to be accessible to others online and has therefore approached the Honorable Courts to allow the person to approach a social media platform and request that particular information be removed.

Supreme Court�s landmark judgment, Justice K.S. Puttuswamy and Anr. v. Union of India[4] existing as a binding precedent on the matter of privacy and any related matters, but the Bench constrained itself to just acknowledging the existence of the 'Right to be Forgotten' within the umbrella of the right to privacy, but chose not to enforce it as a separate Fundamental Right.

Indian High Courts have as a result differently interpreted it, with High Courts of Karnataka, Kerala, Orissa and Delhi ruling in favor whereas the Gujarat High Court has decided against it.
Gujarat HC[5] observed that because the petitioner did not specify which sections were violated by the publishing of the impugned judgement, it would not fall within the ambit of Article 21. Despite the fact that the petitioner's legal representatives claimed that the behavior in question was unregulated and thus created privacy concerns. It was evident that the harmful consequences on the petitioner's personal and professional life were clearly caused by a lack of or rather a breach of his privacy and demanded the implementation of 'Right to be Forgotten'.

In a similar case before Karnataka HC [6], filed under Articles 226 and 227, the petitioner's father sought that the verdict be removed from all digital recordings. According to his argument, the decisions reached should not be accessible to the public via search engines such as Yahoo and Google. The case was about a family matter, and was later resolved by the spouses themselves and they reunited.

Therefore, to safeguard the woman's reputation, it was demanded that all digital information be erased or made inaccessible to the general public. The Court struck an interesting balance when it decided not to make any changes to the High Court website or a certified copy of the ruling which is an acceptable law since public domain means common spaces that are widely used whereas court websites are mostly accessed by people from legal fraternity for purpose of learning nuances of law.

Similarly, in Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors.[7] Delhi High Court recognized the Plaintiff's right to privacy, of which the 'Right to be Forgotten' and 'Right to be Left Alone' were fundamental parts, was recognized by the Delhi High Court, which granted him remedy in the form of a restraining order against the disputed content's publication. However, the Court's granted relief in a restricted manner, and it only did so while the case was pending.

The Odisha High Court, presided over by Justice SK Panigrahi[8], concluded that, �the information in the public domain is like toothpaste, once it is out of the tube one can�t get it back in and once the information is in the public domain it will never go away� confirming the decisions of numerous other High Courts, that an individual has the right to expect intermediaries to delete sensitive information about them from the internet.

The current case involved the publication of intimate photographs of a woman on the internet. While such horrible acts carry severe penalties, there are no systems in place to ensure that the victim's right to be forgotten is respected. Only after the police had visited the accused did he take down the content in this case. There was no way for the victim to directly contact the intermediary (Facebook) and request that it be taken down.

Recent Delhi HC[9] interim decision issued by the Delhi High Court has the potential to provide some temporary relief until concrete legislation on the matter is enacted.

Immediate Need for Legislative Recognition

Several parts of privacy remain unclear in terms of how they will be enforced under the banner of privacy breaking. Given the tremendous quantity of information available on the internet, anyone may find out personal information about a specific person simply typing their name into any search engine and this can have major consequences for the person's reputation.

With the Personal Data Protection Bill still pending, the state of 'Right to be Forgotten� in India is plainly in flux, also with the Court issuing contradictory statements[10].

The scope and extent of this right has to be critically recognized by the legislature before drafting relevant provisions granting the same since the need for such a right concerning privacy on the internet, is well recognized however excessive use of such right will inevitably reach broad areas of privacy where individuals interpret certain personal data as unnecessary, irrelevant, or inaccurate but the public may be put off which would eventually create a chilling effect on Freedom of Speech and Expression. Therefore, it is essential that the legislation is created in a way that it caters to a context-specific approach rather than lays down generic rules.

The most popular criticism for "The Right to Be Forgotten" is that it will encourage people to make repeat requests for no apparent reason, and that the law will be difficult to enforce. However, it is clear that this right encourages those who believe there is no way to leave the past alone on the Internet, and it is a strong example of how power can be withdrawn from the Web and returned to its users, which is crucial in light of debates surrounding the current day intermediaries and privacy concerns such as data privacy. The recent uproar caused by WhatsApp User Policy is a testimony to the importance of such rights.

  1. Tejashree J, The Need for the Right to be Forgotten in India, RGNUL Financial and Mercantile Law Review, Vol. 5, p. 106 - 112 (2018)
  2. Google Spain SL v. Agencia Espafiola de Proteccion de Datos (AEPD) 2014 E.C.R. 317
  3. Samuel Warren and Louis Brandeis , The Right to Privacy" 4 Harvard L.R. 193 Dec. 15, 1890
  4. Justice K.S. Puttuswamy (Retd.) and Anr. v. Union of India, (2017) 10 SCC 1
  5. Dharamraj Bhanushankar Dave v. State of Gujarat & Ors, 2015 SCC Online Guj 2019
  6. Vasunathan v. Registrar General, (2017) SCC Online Kar 424
  7. Zulfiqar Ahman Khan v. Quintillion Business Media Pvt. Ltd. & Ors. AIR 2019 Del. 132
  8. Subhranshu Rout @ Gugul vs State of Odisha,BLAPL No.4592 OF 2020
  9. Jorawer Singh Mundy @ Jorawar Singh Mundy vs Union of India, W.P. (C) 3918/ 2020 & CM APPL. 11767/ 2021
  10. Hillary C. Webb, People Don�t Forget: The Necessity of Legislative Guidance in Implementing a U.S. Right to be Forgotten, 85 GEO. WASH. L. REV. 1304, (2017)

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