The Right to be Forgotten- An absolutely needed Right to Privacy

By | September 6, 2021
The Right to be Forgotten

This article on ‘The Right to be Forgotten- An absolutely needed Right to Privacy’ is written by Ayushi Modi and discusses the concept of the right to be forgotten as a right under the right to privacy.

I. Introduction

“The internet is becoming the town square for the global village of tomorrow”- Bill Gates.

It is said that anything published on the internet is there to stay. With the growing presence of the internet in every aspect of our lives, the notion of privacy has gained a lot of momentum. While the phenomenon of the Internet has been a boon for the 21st century, it can also be very unforgiving.

The internet today can be used to do almost anything, including ruining reputations in professional and personal spheres. Our digital footprints leave an impactful image, which enables society to formulate an option, with no regard for authenticity. Thus, it has become pertinent for counties to acknowledge and incorporate in their legislations systems, an absolute right to be forgotten.

II. The Right to be Forgotten

‘Right to be forgotten’ reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them. It entitles the rights of individuals to compel any person or platform to delete certain records of them from the internet.

With the growing presence of the internet, we have also experienced unprecedented growth in cybercrimes. The right to be forgotten thus provides a way for people to attain privacy from these cybercrimes. Society today is quick to pass judgements about a person by objectifying their online persona, without caring for its authenticity. Thus, everyone deserves an absolute right to be left alone.

In the absence of a sound data protection framework in India, The Information Technology Act 2000 and IT Rules 2011 which currently govern the arena of privacy and technology in India, don’t include any grounds for the right to be forgotten.

While the right to privacy too wasn’t in the landscape of Indian legislation, a nine-judge bench of the Supreme Court in 2017 unanimously affirmed that the right to privacy is a fundamental right under the Indian Constitution.[1] The judgement mentions that ‘the right to privacy recognizes the importance of protecting the sphere of our personal daily lives from the public’.[2]

Justice Sanjay Kishan Kaul held such opinion stating that:

“The impact of the digital age results in information on the internet being permanent. Humans forget, but the Internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The footprints remain. It is thus, said that in the digital world preservation is the norm and forgetting a struggle.”[3]

The right to be forgotten thus started being exercised as an extension to the right to privacy. However, even with such recognition, the carving of protection rights will require the introduction of the draft Personal Data Protection Bill 2019.

The bill provides the rights to individuals, to correct, withdraw, limit, and delete data. Further Section 20 of the bill, states that the data principal has the right to restrict or prevent the continuing disclosure of his personal data by a data fiduciary. Since the bill is yet to be passed by the parliament, the only recourse that can be adopted for enforcing the right to be forgotten through the right to privacy has been through approaching the court.

Although the importance of privacy has not yet been embarked in legislation, it has been recognized by the court through various judgements. Just alone in the years 2020 and 2021, there have been various cases where the court has had to exercise the right to be forgotten as an extension of the right to privacy. However, such extensions of the right to privacy create ambiguity and dependency on ad-hoc judicial attention of the courts.

In a recent case of 2021, before the Madras High Court[4], the petitioner approached the court with a plea to exercise his Right to be Forgotten. He had been accused under the Indian Penal Code but was later acquitted of all charges. However, with the presence of his name on judicial records, he was defamed in society and sought to the court, to have his names redacted from the documents.

While the High Court did grant the petitioner his right, it was held that all advocates on the record would have to be consulted before such redaction. The judgement held by the court was a welcomed change but without the presence of an absolute right, such cases can produce an unnecessary delay in justice while also being dependent on the circumstances of the case for justice to be rendered.

In another similar case before the Karnataka High Court, the court was approached to redact the name of the petitioner’s daughter for it was detrimental to her reputation in society and also, to her relationship with her husband. While exercising the right to be forgotten, the High Court ensured her name be redacted from the title or body of the judgment in any internet search made in the public domain. However, the High Court refused to make any changes in the High Court website or in the certified copy of the judgment,[5] which restricted the exercise of her right to be forgotten.

Such different opinions on the right to be forgotten render it restrictive rather than an absolute right. Without an absolute right to be forgotten, a person’s exercise of his right to be private will always be restricted to the best judgements of the courts. In a case before the Gujrat High Court, the court refused to remove the judgements of the cases faced by an acquitted person.[6]

The petitioner wished to migrate to Australia however his name on the judgements (which he had been acquitted of) hampered his chances of acquiring a good profession and reputation. The Court held that there has been no demonstration of any legal reasons to remove the judgement from the websites and search engines, thus dismissed his request.

With children having an online presence at a young age and leaving digital footprints, the introduction of a fundamental absolute right to be forgotten is of utmost importance. As seen above, three High Courts exercising the Right to be forgotten, with a similar background, produce three different outcomes. Thus, an approach to the court in order to exercise the right to be forgotten as an extension to the right to privacy instead of an absolute right, cannot sustain.


References

[1] Puttaswamy v. Union of India, (2017) 10 S.C.C. 641

[2] Ibid.

[3] Krishnadas Rajagopal, ‘To be forgotten online is part of privacy: Justice Kaul’ (New Delhi, The Hindu) Available Here, accessed 16 August 2021.

[4] W.P. (MD). No. 12015 of 2021 (Madras High Court Order).

[5] Sri Vasunathan v. The Registrar General, 2017 SCC OnLine Kar 424.

[6] Dave v. State of Gujarat, SCA 1854 / 2015.


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