Right To Be Forgotten: Meaning, Evolution, And Its Legality In India

– the Supreme Court of India in K. S. Puttaswamy and Anr. V. UoI

After a protracted legal battle, the right to privacy was finally declared as a fundamental right by the Supreme Court of India in the 2017 landmark Puttaswamy V. UoI case, which has popularly come to be known as the Right to Privacy case. However, not long after this historic case was delivered, there have been calls to expand the ambit of the right to privacy and include within its fold, the Right to be Forgotten.

Explained in simple terms, the right to be forgotten allows a person to have information concerning them to be erased from the annals of the internet if such information is found to be violative of their privacy or is said to have been published without consent. However, like most fundamental rights, the right to be forgotten too is to be exercised while adhering to certain restraints. If the information sought to be removed falls under the classification of that which is necessary to be published for purposes of law, archiving and maintenance of public health, then the right is usually considered to have been waived. Thus, in many ways, a person's right to be forgotten is one that is at perpetual and constant loggerheads with the right to freedom of speech.

Background:

The legal system is ever evolving. Just a century ago there were comparatively fewer laws than we have today. As time passes by, more and more laws are added to existing ones in accordance with the demands and requirements of a constantly evolving society. Similarly, the laws relating to the "Right to be forgotten" too have seen rapid development over the last few decades.

Considering the fact that this right is inherently associated with the publication of information over the internet, calls for its institution and enforcement too have been a fairly recent phenomenon. In 1998, in first ever case on right to be forgotten, a Spaniard named Mario Costeja González, economically strapped and staring at the brink of bankruptcy, decided to advertise his property for auction in the newspaper. This advertisement which was to be printed in a newspaper, inadvertently ended up being published on the internet. And because of this, his name continued to be associated with bankruptcy and was black marked, long after having recovered from his financial crisis. Consequently, the information considerably damaged his reputation propelling him to knock the doors of justice. He filed a suit in the court for the removal of this information and this was the inception of the long drawn and on-going fight for the recognition of people's right to be forgotten. Over the years, plethora of petitions across courts of various countries have been, and continue to be, filed, seeking the enforcement of this very right to be forgotten.

Position in different countries:

The case filed by Gonzalez, was adjudicated and decided upon by the Court of Justice of the European Union in May of 2014 making way for the land mark judgement of Google Spain v AEPD and Mario Costeja González. Though it was implicitly recognized as a right back in 1995 by the European Union Directive on Data Protection, it was through this 2014 judgement that it was expressly recognized by The European Court of Justice. The court ruled against Google and held that every person had the right to erasure of personal information from the internet. The court found that European data protection law affords every one, the right to obtain erasure, from the controller, of online posts which may contain mortifying news articles, videos or pictures relating to them.

Subsequent to this judgement, the European Union, in 2018, adopted the General Data Protection Regulation (GDPR), which are a set of laws dealing with data protection and privacy in the European Union and European Economic Area. And following this, in 2019, the EU Court restricted the regulation only to the European Union member countries, saying that search engine giants like Google are not bound to apply the "right to be forgotten "outside Europe.

Russia, in 2015, enacted a law that allows users to force a search engine to delete personal information of individuals who so seek. The deletion can be sought on the grounds of violation of law, irrelevancy and inaccuracy. Similarly, this right to be forgotten has also been recognised to a considerable extent in countries like Siberia and Turkey.

However, in the USA, the position is markedly different. A major impediment to the implementation of the right to be forgotten in USA is the country's highly regarded fundamental right to free speech. Here, in most cases involving a conflict between the right to privacy and the right to free speech, the tradition in USA has been, and continues to be, for former to give way to the latter. In fact this right to free speech is considered to be so sacrosanct that, Jimmy Wales, the founder of Wikipedia, once said, "This is not a debate the United States is even capable of entering into. You'd have to repeal the First Amendment – and that's like a religious artefact – so that's never going to happen."

In May 2016, China's first ever case on the right to be forgotten, was decided upon and it was held that Chinese citizens don't have a "Right to be forgotten". The court ruled in favour of Baidu, their most widely used search engine, and denied the petitioner Ren Jiayu's request for removal of his private information from the online websites.

Position in India:

As for India, we are still miles behind in terms of legislative progress in this matter. The government of India, in 2019 introduced the Personal Data Protection Bill which primarily dealt with the regulation of data processing by both government and non- government entities. The article 20 of this bill exclusively dealt with the right to be forgotten, it's enforcement, regulation and restriction. It mandated the enforcement of the right only through the sanctioning by a concerned Adjudicating officer and had also carved out provisions for review and appeal of the orders of such Adjudicating officer. However, this bill was revoked recently owing to the numerous concerns flagged by the Joint Parliamentary Committee regarding some of it's other, ostensibly more draconian provisions, although, the Ministry of Information and Technology has assured that a revised and updated version of the bill will be passed within in due time.

Case Laws:

In spite of all this, the number of cases filed before the courts seeking the enforcement of the right to be forgotten have not abated and the different courts continue to deliver varying judgements within their territorial jurisdictions in such cases and the High Courts of Delhi, Karnataka and Gujarat have all dealt with cases pertaining to removal of private information online. Most notably, the Karnataka HC, in a 2017 judgement, upheld the right of the petitioner, who had sought the removal of the name of her daughter which had been propped up on certain search engines due to publication of information regarding a case wherein she had gotten her marriage annulled. In the judgement of the case, titled Sri Vasunathan v/s The Registrar General & Ors., the single bench court of Justice Anand Byrareddy adopted a purposive approach and held that although there exists no statute that conferred the right, in the wake of the increasing importance being placed on an individual's right to privacy and the adoption of rules dealing with right to be forgotten in foreign jurisdictions like Europe, it would only be in the right interest of justice to pave way for the same in India.

Contrastingly, just a few weeks before this judgement was delivered, the HC of Gujarat, in the case of Dharamraj Bhanushankar Dave v/s State of Gujarat & Ors., had adjudicated on a similar matter in which a person, acquitted of criminal offences, had filed a petition asking for the removal of his name from public websites. The Gujarat HC, here, took on a more positivist line of reasoning and held that in the absence of necessary legislative backing, it could not declare such publication as being violative of the petitioner's fundamental rights and hence refused to enforce the petitioner's right to be forgotten.

Further, in a more significant and seminal development, the Supreme Court's division bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundaresh, in the case of XXXX vs. Kancherla Durga Prasad and Others, recently concluded that a couple who had been estranged had the right to have their personal information erased from the internet in the light of the social ostracization that they had to endure with in connection to a previous matrimonial case that they had been embroiled in. This is decision of far and wide impact as it will now set a precedent for future High Court cases and will be of immense persuasive value in any case pertaining to the right to be forgotten or even, the larger right to privacy that might prop up in the future.

The aforementioned contradictory judgements delivered by the different High Vourts in matters raising essentially the same question, only underscores the urgent need for a legislation that can comprehensively deal with the issue of individuals' right to be forgotten, very much on the lines of the GDPR. And although the recent Supreme Court judgement streamlines and addresses the ambiguity to a large extent, the legislative chasm in this matter is obtrusively visible and calls for immediate attention from the state authorities.

While the right to be forgotten is a completely established legal right in Europe, Russia and other countries, there are many others, including India, which are yet to fully recognize it as a legal right. Essentially, this right takes on different shapes and shades and is increasingly becoming a topic of discussion in many countries now, particularly in the light of the 2014 European court's ruling and over the past few years, many countries have also shown readiness to establish the right to be forgotten as a fundamental legal right.

It is strongly believed that the Article 20 of the PDP Act, 2019 was a step in the right direction. Although the bill's repeal was inevitable, considering the number of issues that had been flagged with respect to some of its provisions, this retraction should not hinder the progress that was made by the section 20 of the bill in granting the right to be forgotten.

Since we are living in the internet age where everything and anything is bound to be published online, it becomes all the more important for the government to quickly pass a law dealing with the questions surrounding privacy, data protection and right to be forgotten at the earliest. The Central Government had, in 2021, had even admitted that the right to be forgotten is an integral part of the right to privacy which, itself, has been held to be a fundamental right by the SC in the Puttaswamy case, thus it is only logically sound to have the right to be forgotten also declared as a fundamental right. Therefore, the onus is now on the government to not only bring into functioning a well-structured legislation to establish the right to be forgotten but also officially declare it to be a fundamental right and one hopes that such a day is not too far away.

Authors: Ummar Jamal is a student of Kashmir University and Prerana Srinath is a student of Jindal Global University. Views are personal.