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Right to be forgotten in India

'Right to be Forgotten is the biggest threat to freedom of speech in the coming decade.' -- Jeffrey Rosen

Introduction
The right to be forgotten gives the right to individuals to have their private information removed from the internet, websites or any other public platforms under special circumstances. The right to be forgotten is also called as the right to erasure. Right to be Forgotten was first established by European Union on May 2014. In India, currently there is no law that specifically provides the Right to be Forgotten.

However, on December 11, 2019, Ravi Shankar Prasad, the Ministry of Electronics and Information Technology, introduced The Personal Data Protection Bill to the Lok Sabha. This Bill is not yet passed in the Parliament. The main objective of the Personal Data Protection Bill is to protect an individual's privacy, relating to their personal data. Under the Personal Data Protection Bill, Chapter 5 talks about Right of Data Principal.

In this chapter, clause 20 mentions the Right to be Forgotten. Clause 20 (l) states that:
Data principal (the person to whom the data is related) shall have the right to restrict or prevent the continuing disclosure of his personal data by data fiduciary.

Hence, under the Right to be Forgotten, the users can delink, delete, or correct an individual's personal information.

General Data Protection Regulation (GDPR)

The General Data Protection Regulation was enforced on 25 May, 2018 by European Union. The General Data Protection Regulation provides the right to individuals to delete/erase their personal information by asking the organisers.

Section 17 of the General Data Protection Regulation states that:
The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay.

But the right given to the individuals by GDPR is not an absolute right. Therefore, the organisers are not always entitled to do it.[1]

Right to be Forgotten related to Article 21 of the Constitution

Article 21 is the fundamental right in the Indian Constitution and is the most valuable right. It states that No person shall be deprived on his life or personal liberty expect according to a procedure established by law.

In Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India,[2] the Supreme Court held that the Right to Privacy is a fundamental right and it will be included in the Right to Life enshrined under Article 21 of the Constitution. The Supreme Court 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.

In Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. And others,[3] Zulfiqar Ahman Khan demanded for the removal of articles written against him in news website The Quint. The Delhi High Court observed the Right to be Forgotten and the right to be left alone as an integral part of individual's existence.

Other case laws related to right to be forgotten in India

In the recent 2021 case, Jorawer Singh Mundy v. Union of India and Ors.,[4] the High Court of Delhi, directed Google to remove the verdict acquitting man in drug case as it affected his job prospects.

In the case, Dharmaraj Banu Shankar Dave v. State of Gujarat,[5] Dharmaraj Banu Shankar Dave was acquitted in a kidnapping and murder case and demanded that the judgments regarding his case to not be available publicly. Gujarat High Court rejected the demand of The Right to be Forgotten.

In the case, X vs. Registrar General,[6] Karnataka High Court recognised the Right to be Forgotten in heinous crime committed against a woman. The court stated that:
If the right to be forgotten is not recognised in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered.

 In Subranshu Raot v. State of Odisha,[7] the Orissa High Court examined the Right to be Forgotten as a remedy for the victims of sexually explicit videos or photos often posted on social media for harassing the victims.

In State of Punjab v. Gurmeet Singh and Ors,[8] the Supreme Court has held that anonymity can help protect victims of sexual offence from social ostracism.

Challenges associated with right to be forgotten

  1. Danger to Journalism:
    If the Right to be Forgotten is implemented, the journalists may face trouble in presenting the news and information to public. It would create a state of disarray in the press and media industry as they will have to wait for the decisions of the adjudicating officer. The journalists will suffer impediment in imparting information and ideas through media.
     
  2. Violation of Freedom of Expression:
    Freedom of Expression is a universal human right. The removal of online content from the internet might affect the citizen's freedom of expressions. They will suffer a problem in expressing their views through published articles, books, television, internet or any other medium, as the balance of power of removing the information will shift in the favour of individual, whose information has been made public. They will not feel free to express their opinions or beliefs on a particular matter.
     
  3. Impact on Freedom of Speech:
    Rosen said, Right to be Forgotten represents the biggest threat to freedom of speech in the coming decade. If the past acts of an individual is posted on the internet, then the public will have easy access to read/view those erroneous acts and will judge that person based on his past acts.

Suggestions
Article 19 (1) (a) of the Indian Constitution provides for the Right to Speech and Expression. This right is subject to reasonable restrictions in Article 19 (2) of the Constitution. My suggestion is that there should be an Amendment through which the Right to Privacy must be included in Article 19 (2) of the Constitution.

Conclusion
In India, currently there is no law that specifically provides the Right to be Forgotten. On one hand, if the past acts of an individual are posted on the internet, then the public will have easy access to read/view those erroneous acts and will judge that person based on his past acts. This can cause psychological and emotional suffering to the individual as it can affect his present life.

But on the other hand, the freedom of speech and expressions of the citizens will get limited and it will cause disarray in journalism. The right to be forgotten thus is a very complex issue as it brings uncertainty between right to privacy and the right to free speech and expression.

End-Notes:
  1. https://gdpr.eu/right-to-be-forgotten/
  2. (2017) 10 SCC 1.
  3. CS (OS) 642/2018.
  4. 2021 SCC OnLine Del 2306.
  5. SCA No. 1854 of 2015.
  6. W.P. No. 62038/2016.
  7. WP (C)/4159/2020.
  8. 1996 AIR 1393, 1996 SCC (2) 384.

    Award Winning Article Is Written By: Ms.Preeti Sudhir Nayak
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