Technology has presented society with the opportunity to display their lives to friends, family, and often the public at large. Social media pushed present generations into an age of visibility that few had predicted. On the other hand, despite this new age of visibility, human beings have an inherent nature to preserve the right to maintain confidentiality over particular facets of their lives. Legislations and laws that stood implemented in the nation did not fathom this and as a result, these legislations did not cover the invasion of rights that social media caused. One of the more prominent examples of this is the Right to be forgotten. The concept of this right first appeared in Europe in 2010 as a result of French legal precedent on the “Right to oblivion,” or Droit a loubli. This right to be forgotten helped convicted criminals who had served their prison terms by prohibiting the dissemination of information about their crimes and criminal lives. This right was reiterated in England when the personal details of a UK doctor whose “botched procedure” attracted media attention are among thousands of URLs removed from Google search results after the European Court of Justice (ECJ) ruled that individuals have “the right to be forgotten.”
The Right to be Forgotten or the Right to Erasure refers to an individual’s right to get their personal information removed from resources accessible to the public. This right emerged in response to the fact that there are times when information on the internet is often outdated, irrelevant, and at times, no longer necessary, and hence individuals must have the right to ask that it be deleted. This includes data that was published online, either by the individual or by others, including news articles, search engine results, and social media posts.
RIGHT TO BE FORGOTTEN IN THE INDIAN CONTEXT
No laws or legislation have been passed in India with specific relief against the violation of the Right to be forgotten. However, The Ministry of Electronics and Information Technology prepared a Bill, that was titled the Digital Personal Data Protection Bill 2022. The Bill lists the rights of Indian Citizens concerning their data, and the obligations of the Data Fiduciary to use the data which is collected in lawful ways. This bill aims to set up a Data Protection Board of India to determine non-compliance with the provisions of the Digital Personal Data Protection Bill, impose penalties for non-compliance, and perform other functions as the Central Government may assign to it under the provisions of the Bill or any law. Digital Personal Data Protection Bill, 2022 is pending before the Lok Sabha. It nods towards this right and contains various sections that protect against its violation.
DIGITAL PERSONAL DATA PROTECTION BILL, 2022
- Subsection 2 of Section 6 “Notice” of the Digital Personal Data Protection Bill, 2022 states that “Where a Data Principal has given her consent to the processing of her data before the commencement of this Act, the Data Fiduciary must give to the Data Principal an itemized notice clear and plain language containing a description of personal data of the Data Principal collected by the Data Fiduciary and the purpose for which such personal data has been processed, as soon as it is reasonably practicable.”
- Sub-section 4 of Section 7 states that the Data Principal may have the right to withdraw her consent given to the Data Fiduciary to publish her data online. However, the consequences of such withdrawal will be certain to be borne by the Data Principal.
- Section 8 deals with the deemed consent of the Data Principal.
- Section 13 of the bill is titled “Right to correction and erasure of personal data”. Subsection 1 of section 13 provides the right of individuals to have autonomy over the correction or erasure of their data. Similarly, sub-section 2 clause (d) states that a data fiduciary may, upon receiving the request from the data principal erase the personal data of a Data Principal that is no longer necessary for the purpose for which it was processed unless retention is required for a legal purpose.
JUDICIAL STANCE ON THE RIGHT TO BE FORGOTTEN
Jorawar Mundy, the plaintiff who happened to be an American citizen by birth but of Indian descent, was charged in a narcotics case within Indian territory in the year 2009. The charges against him were dropped by the Delhi High Court at trial. However, it was in the year 2022 that he filed a plea in Indian Courts claiming that he wasn’t employed and was unable to be as when employers ran a background check on him, his name was associated with narcotics charges and hence he was unable to find employment. He wished to remove get the previous judgment removed from search engines and to become inaccessible to the general public. The case was decided in favour of the plaintiff, and hence in favour of the Right to be Forgotten.
Supreme Court, in this case, held that remaining anonymous helps protect victims of sexual assault from ostracization in society, and in front of the general public.
The Karnataka High Court decided in favour of the Right to be forgotten. This case was filed to get the name of the petitioner’s daughter removed from the cause title, as its easy accessibility made his daughter prone to defamation in society. The court held that the name of the petitioner’s daughter is to be struck from the cause title and the orders. The Hon’ble High Court also stated that this judgment is consistent with various other judgments made in European countries, where the ”Right to be forgotten” is applied in sensitive cases concerning women in general, especially concerning sensitive cases that involve rape or molestation, instances of harming the modesty and reputation of the female concerned.
The judge, in this case, held that Article 21, Right to Life and Liberty in the Indian Constitution is inclusive of the Right to Privacy from which the Right to be Forgotten was derived.
Judge stated that the Right to be forgotten is in sync with the Right to Privacy. The judge also reiterated the statements made in the V vs High Court of Karnataka judgment, stating that the Right to be forgotten must be acknowledged in Indian Laws as it is of integral importance to women who are at risk of being looked down upon in society upon being associated with cases of sexual harassment, and by extension may be afraid to file cases due to the same.
The Right to be forgotten, although lacks legislation in its name, it has gained popular consensus from the public and the judiciary alike in its support. Even the executive has made efforts to implement this right in the nation as with the new technological revolution, privacy is at risk of getting invaded now more than ever. However, the government must also make appropriate measures to implement the laws in a way in which the regulation of data does not fall within the purview of the state, and infringe upon the freedom of expression of the citizens. This may be one of the major reasons for the delay in the implementation of this bill as a law.
Author(s) Name: Gauri Sherawat (Dr. B. R. Ambedkar National Law University, Sonepat)