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1st Jus National Article Writing Competition, 2018August 15, 2018
Right to be forgotten
This came in light of the judgement delivered by the Court of Justice of the European Union in Google Spain V. Costeja, that individuals have the right to ask search engines for removal of links with personal information about them, under certain conditions where the “information is inaccurate, inadequate, irrelevant, or excessive for the purposes of data processing” and whether there is a public interest in the information remaining available in search results. In European Union, this right is derived from the 2016 General Data Protection Directive(EU GDPR). Since then, Google had received 2.4 million request from individuals and organizations from across Europe to be “forgotten” which has ranged from home addresses to photos, videos etc. The massive number in Europe alone shows the rising concern related to protection of even the most trivial data in the event it may be used for any purpose adverse to their interests.
So what is this extremely debatable “right to be forgotten?” Referred to as the “right of erasure” in the (EU GDPR) it basically refers to the right of an individual to have any of his personal information removed from any online database or such. This has seldom been expressly recognized in any international or national legislative framework including the Information Technology Act, 2000 where it finds no mention. In India, the existence of this right is obscure, cropping up only in a few cases.
The Gujrat High Court was the first to pass such an order, in Dharmaraj Bhanushankar Dev. State of Gujarat & Ors in this regard, the petitioner sought a remedy against publication of a ‘non-reportable’ judgement by Indian kanoon which had appeared in the search results of Google. The court observed that since the judgement part of its proceedings and was pronounced by the court,mere publication would not amount to being ‘reported’ as the word ‘reportable’ used for judgement is in relation to it being reported in a law reporter. Hence the petitioner’s plea for enforcement under Article 21 was turned down.
This right was truly recognized in Sri Vasunathan v. Registrar General where a petition was filed before the Karnataka High Court by a man seeking the removal of his daughter’s name from an earlier order passed in a criminal case. Such request was made in the apprehension of the daughter’s name being associated with the order, in case the same shows up in any result of some search engine which might then have the effect of adversely affecting her reputation in society. Upholding the woman’s right to be forgotten, Justice Byrareddy observed, “this is in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”
In yet another case,by the Kerala High Court upheld the right to be forgotten. The petitioner, a rape victim, being aggrieved by the publication of the judgements without her or the consent of the court contended that such publication violated her right to privacy under article 21. Justice Shaji P Chaly of the Kerala High Court passed an interim order asked Indiankanoon.org to remove the name of the petitioner from the judgement by the same court from its site.
On 31st July 2017, a committee of experts was formed by the Government of India through the Ministry of Electronics and Information Technology under Justice Srikrishna Committee to recommend ways for a legislative framework on data protection in India. The Committee released a white paper inviting public comments. Among other subjects, paper expounds upon the rights one will have over one’s data, circumstances where agencies can ‘process’ data. It also lays down the manner in which these entities that regulate data may be regulated and the nature of their liability in case of breach. The white paper lays down the groundwork based upon which a data protection law will be introduced in India.
It has often been pointed out that the concept of ‘privacy’ was absent from the Constitutional scheme which leads to the notion that the makers were not concerned with privacy as a fundamental right. This notion was completely overturned in the Justice K.S Puttaswamy(Retd) v Union of India & Ors where privacy was indeed recognized as a fundamental right. An allusion was also made to this right by Justice Kaul. Hence, the ‘right to be forgotten’ is no longer an obscure concept but it is a growing concern. Although some steps have been taken, much remains to be done to give protection to this right under India’s current data protection framework.