Right to be Forgotten: Is it a Fundamental Right in India?

The article 'Right to be Forgotten: Is it a Fundamental Right in India?' enumerates adverse effects on society if the right to be forgotten becomes a fundamental right and also discusses cases related to the Right to be Forgotten.

A petitioner had visited India. A case was filed against him under the Narcotics Drugs and Psychotropic Substances Act, of 1985. But after some time he was released. After going to his country, he saw that the decision of the High Court is available on the Internet. Therefore he sent notices to Google India Private Ltd., Google LLC etc. and requested to delete the data of his past actions. He wanted to delete all the information related to his past actions from the internet because it was directly affecting his career. The matter was further brought before the Delhi High Court through a writ petition and the court mentioned that there is no such right to be forgotten under Indian Laws and therefore the matter could not be deleted from social media permanently. [Jorawar Singh Mundy v. Union of India (2021)]

There is controversy about, Whether the Right to be forgotten is a fundamental right in India or not. The Right to be forgotten gives the Right to individuals to have their private information removed from the internet, website or any other public platforms”. If the Right to be forgotten becomes a fundamental Right, then it will create a lot of problems, like Freedom of speech and expression. The right to be forgotten was first established by the European Union in May 2014. Till now there is no Law in India regarding the Right to be Forgotten. But on the recommendation of the electronic minister, a bill was presented in the Lok Sabha in 2019, which protects the data of individuals.

Introduction

If a person puts his photo on his Facebook account, then he can delete that photo easily but if any information is uploaded in any other way like, Google, Chrome, or Twitter that can’t be deleted by easy way. Right to be forgotten is a legal concept in which a person requests to delete the information, related to him. The right to be forgotten is such a Right, that protects the user from having harmful effects that will wipe out his personal information. The Right to be forgotten is a new concept which has not yet been recognized by the courts. Our constitutional maker framed the fundamental rights to protect human dignity.

“Right of an individual to exercise control over his personal data and to be able to control his own life would also encompass his right to control his existence on the internet”....................Justice S.K. Kaul

1. EU (GDPR)

The General Data Protection Regulation is a law related to the privacy and security of an individual person. It is drafted and passed by the European Union. It protects the data of individuals. The General Data Protection Bill gives penalties, for violation of the General Data Protection Regulation.

The General Data Protection Regulation outline circumstances under which the right to be forgotten applies. An individual can erase personal data if these conditions are fulfilled:

• Personal data is no longer necessary for the purpose an organization originally collected or processed it.
• An organization is relying on individual consent as the lawful basis for the processing of the data and that individual withdraws their consent.
• An organization is relying on legitimate interests as its justification for processing individual data, the individual object to this processing, and there is no overriding legitimate interest for the organization to continue with the processing.
• An organization is processing personal data for direct marketing purposes and the individual object to this processing.
• An organization processed individual data unlawfully.
• An organization must erase personal data in order to comply with a legal ruling or obligation.

2. Right to be Forgotten in India

The right to be forgotten is the right of an individual person to erase content from being accessible to the public at large. The information can be in the form of videos, news, or photographs. The right to be forgotten is creating many problems between the right to be forgotten and the right to privacy. Till now no law has been made on this topic in India, but day by day cases related to this topic are coming to the fore.

Personal Data Protection Bill 2019

A bill was introduced in 2019 by the Minister of Electronic or information technology. This bill was introduced in the Lok Sabha, but this bill has not been passed yet. The full name of the bill is Personal Data Protection Bill 2019. The main purpose of this bill is to protect the personal data of individuals in society.

Grounds for processing personal data:

The bill allows the processing of data by fiduciaries only if consent is provided by the individual.

• If required by the state for providing benefits to the individual
• Legal proceedings
• To respond to a medical emergency

Right of Data Principle

Data Principle (the person to whom the data is related) shall have the right to restrict or prevent the continuing disclosure of his personal data by the data fiduciary.

Hence, under the right to be forgotten, the user can delink, delete, or correct individual personal information.”

3. Right to be forgotten related to Article 21 of the Indian constitution

Article 21 says,

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The right to privacy and the right to be forgotten are interrelated to each other. Because the data of a person also covers his privacy.

There are some case laws which are decided by the court of law.

Jorawar Singh Mundy v. Union of India, [W.P. (C) 3918/2021]: Is the right to be forgotten a fundamental Right?

It is a very famous case. In this case, the court had two rights.

1. Petitioner's Right to privacy

2. Public Right to Information.

Out of these two, whom should the court protect, this was the question.

The court said that India does not have the right to be forgotten. The reference of the European court was taken for the same thing. The European Court said that the rights to privacy are above than economic rights of people. The Supreme Court of India held that the Right to privacy and the right to be forgotten are the same thing and both of them will go hand in hand.

K.S Puttaswamy v. Union Of India, AIR 2017 SC 4161

Taking reference to this case, the Supreme Court said that the respondent will have to remove the petitioner case from its domain. Supreme Court recognised the right to be forgotten as part of the right to life under Article 21.

Supreme Court had stated that the right to be forgotten was subjected to certain restrictions and that it could not be used if the material in question was required for the:

• the exercise of the right to freedom of expression and information;
• fulfilment of legal responsibilities;
• execution of duty in the public interest or public health;
• protection of information in the public interest;
• for the purpose of scientific purposes; study, or for statistical purposes; or
• the establishment, executing, or defending of legal claims

Dharma Raj Banu Shankar Dave v. State of Gujarat, 2015 SCC OnLine Guj 2019

Dharma Raj Banu Shankar was caught in a kidnapping or murder case and he was demanding to delete the information which was on the public platform. But Gujarat high court rejected his demand.

Subranshu Raot v. State of Odisha, BLAPL No. 4592 of 2020

In this case, Orissa high court held that the right to be forgotten is a remedy for sexually explicit videos or photos on social media harassing the victims.

Nipun Saxena v. Union of India, Writ Petition (Civil) No. 565 of 2012

Before 1983, there was no provision in India that could conceal the identity of the rape victim. Through this case, the supreme court issued some directions to the media and the police as well as to the registries of courts directing them not to disclose in any manner, the name or identity of victims of rape, or sexual harassment.

Section 228A of Indian Penal Code: After 1983, Section 228A was added to the Indian Penal Code, which highlights mainly disclosing the identity of the victim.

• The proceedings of the rape will take place in front of the camera.
• The media or print media can not reveal the identity of the rape victim as well as the POCSO victim

4. Right to be Forgotten for Past acts:

If a person does any act in the past and the result of his past actions, affects his future and his reputation in such a manner that he cannot do any work and he wanted that his past actions should be forgotten. If the reputation of a person is lost once, it cannot be built again.

5. Is the Right to be forgotten a Fundamental Right in India?

It can be said to be a part of the Right to Privacy. Till now there is no statute passed by the legislature on this topic but a bill has been passed by the minister of electronics which will protect people's data. In India, the right to be forgotten is a developing right.

Sri Vasunathan v. Registrar General, Writ Petition (C) No. 62038/2016

The court held,

“Right to be forgotten in sensitive cases involving women in general and highly sensitive cases affecting the reputation”.

6. Impact of Right to be Forgotten in India

Violation of Article 19

It is a fundamental Right under the Indian constitution. Personal liberty is the most important of all fundamental rights. Article 19 deals with basic rights.

Article 19 (1) (a) talks about Freedom of Speech and Expression

Freedom of speech and expression means the right to express one's own opinion freely by word of mouth, writing, printing, picture or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation, such as gestures, or signs. If the right to be forgotten becomes a Right, then people's freedom of speech and expression will be violated.

Danger for journalism

Media and journalism are considered the fourth pillar of democracy. It plays a very important role in democracy. If the right to be forgotten becomes a fundamental right, then there will be a problem in presenting the news in front of journalism. The Press and Media sector would be in a state of chaos as they would have to wait for the adjudicating officer's decisions.

If the right to be forgotten becomes a fundamental right, then many challenges will have to be faced. Blocking the URL or link does not guarantee that the information has been completely deleted from the internet and there is no guarantee that if that information is deleted once, it will not be uploaded again.

Infringement of right to information

If the right to be forgotten becomes a fundamental right, then people's right (right to information) will be violated. This is an important right of the public. If all the information is deleted, then the public right to information will be infringed. If everyone's information is removed in this manner, then it can be harmful to the public interest as well.

Suggestion

• The right to be forgotten should be used only in fake cases.
  
• That some exceptions should be added in the right to be forgotten.
• The right to be forgotten can be used in only rare and rarest cases.

Conclusion

In India, there have not been any legislative enactments pertaining to the right to be forgotten. If the past act of a person goes on any public platform, the public can easily see or read it, and due to this, the reputation of the victim will be hurt. In India, a bill has been passed which protects people's data. In my opinion, if the Right to be forgotten becomes a fundamental Right, it will create a problem.

References

[1] Justice S.K Kaul, S.K. Puttaswamy v. UOI, AIR 2017 SC 4161

[2] Article 17 of the General Data Protection Regulation

[3] Article 21, Constitution of India

[4] Personal Data Protection Bill 2019

[5] Clause 20, chapter 5 of the Personal Data Protection Bill 2019

[6] Article 19, Constitution of India

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