Understanding ‘Right to be forgotten’:
The right to be forgotten empowers individuals to ask Organisations to delete their personal data.
It is the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant.
Context:
Recently the Centre has told the Delhi High Court that the international legal concept of the right to be forgotten is evolving in India and it comes under the right to privacy under article 21 (fundamental right). However, the government also said it does not have a ‘significant role’ to play.
The Centre told the Delhi High Court that the right to privacy has been recognized as a fundamental right in the K S Puttaswamy judgment (2017) and that the ‘right to be forgotten’ is evolving in India.
At least eight petitions are pending before Delhi High Court seeking removal of private information from the Internet, court records of previous convictions and proceedings and news reports of past events.
Countries that have adopted such laws:
The first known instance where Right to Be Forgotten was used was in 2014. In Spain, a man asked Google to remove links to an old newspaper article which spoke about his previous bankruptcy. Since his debts were paid in full there was little relevancy of that article being online. As a result, he European Court of Justice ruled against Google and declared that under certain circumstances a European Union citizen could have his personal information removed from the public database.
The EU in 2018 adopted the General Data Protection Regulation (GDPR). It provides for erasure of certain categories of data. However this right is limited to certain categories in EU like
- The reasons of public interest in the area of public health.
- For archiving purpose in public interest, scientific or historical research purposes or statistical purposes.
- For establishment, exercise for defence of legal claims.
Russia in 2015 enacted a law that allows users to force a search engine to remove links to personal information on grounds of irrelevancy, inaccuracy and violation of law.
It is also recognised to some extent in Turkey and Siberia, while courts in Spain and England have ruled on the subject.
Difference from Right to Privacy:
Right to be forgotten is different from right to privacy.
Right to privacy deals with information that is not there in the public domain while right to be forgotten deals with publicly known information and preventing third parties from accessing that information.
Position in India:
- Although there are no laws in India but the doctrine of ‘right to be forgotten’ has been recognised by the government in the Data Protection Bill 2019. The Bill is currently pending before Parliament. Clause 20 under chapter V of the draft data protection bill titled ‘the rights of data principal’ mention the right to be forgotten
-The data principal is the person to whom the data is related to.
-According to the provision the data principal shall have right to restrict or prevent the continuing disclosure of his personal data by a data fiduciary.
-Data fiduciary means any person including the state, accompany, any jurist entity or any individual who alone or in conjunction with others determine the purpose and means of processing of personal data.
–Broadly under the Right to be forgotten, users can de-link, limit, delete or correct the disclosure of their personal information held by data fiduciaries.
The main issue with the provision is that the sensitivity of the personal data and information cannot be determined independently by the person concerned, but will be overseen by the Data Protection Authority. Therefore while a user can seek that his data be removed, but his or her rights are subject to authorisation by the Adjudicating Officer who works for the DPA.
2. In the orders passed by the Orissa High Court and Karnataka High Court on the legal question, these courts also have accepted the doctrine of right to be forgotten as the essential part of right to privacy.
3. Centre also said that the IT Act does provide for removal of “certain unlawful information” from an intermediary platform and issuance of directions for blocking public access of any information through any computer resource under certain conditions.
There have been certain cases where the Right to be Forgotten was exercised to a certain degree:
- In April 2016, the Delhi High Court examined the issue after a Delhi banker put in a request to remove details about his marriage dispute. He argued that since the dispute was resolved there was no need for it to be up in the public domain. The High Court has asked for a reply from Google and other search engine companies by September 19, upon which the court will continue to investigate the issue.
- The High Court of Karnataka in January 2017, upheld the Right to be forgotten of a woman who went to court in order to annul a marriage. She claimed that she had not married the man whose name was on the certificate. Once the case was resolved, the woman’s father requested that her name be removed from search engines since her name still showed for enquiries regarding criminal cases in high court.
- The Delhi Court presided over a case in February 2017,where a man requested to have information regarding his wife and mother removed from search engine results. The man was of the opinion that the search engine results that were linked to his name were proving a roadblock to future employment prospects.
Way Forward:
The issue of the right to be forgotten calls for the balance between the right to privacy of an individual with the Right to information of the public. If implemented, this would mean that citizens no longer need to file a case in order to request for information from search engines to be removed.
