STATUTORY RECOGNITION – RIGHT TO BE FORGOTTEN

Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal Liberty except according to procedure established by law.” Article 21, if read, is a colourless article and would be satisfied, the moment it is established by the State. The right to life and the right to personal liberty in India have been guaranteed by a constitutional provision, which has received the widest possible interpretation. Under the canopy of Article 21 of the Constitution, so many rights have found shelter, growth, and nourishment.

The unparalleled growth of information and technology has made us privy to the most intricate details of human lives – both good and bad. The personal information of an individual at this point is not confined to just papers or official and government records. It can now be easily assessed by an individual from anywhere around the world through the web or search engines.
This incomparable change in both the nature and expansion of personal information accessible online is an underlying issue.

The right to be forgotten gives the right to individuals to have their private information removed from the internet, websites, or any other public platforms under special circumstances. The right to be forgotten is also called the right to erasure. Right to be Forgotten was first established by the European Union in May 2014. In India, currently, no law specifically provides the Right to be Forgotten. A traceable procedure must be in place to ensure that removed data is also erased from backup storage media.

In 1998, Mario Costeja González, a Spaniard, had run into financial difficulties and was in
severe need of funds. As a result, he advertised a property for auction in the newspaper, and the advertisement ended up on the Internet by chance. Mr Gonzáles, unfortunately, was not forgotten by the internet. As a result, news about the sale was searchable on Google long after he had fixed his financial issue, and everyone looking him up assumed he was bankrupt.
Understandably, this resulted in severe damage to his reputation, prompting him to take up the matter to the court. Ultimately, this case gave birth to the concept of the “right to be forgotten”.

The European Court of Justice ruled against the search engine giant Google, declaring that under certain circumstances, European Union residents could have personal information removed or deleted from search results and public records databases.
However, in 2019 the EU Court restricted the ruling only to the European Union, saying Google does not have to apply the “right to be forgotten outside Europe”.

However, on December 11, 2019, Ravi Shankar Prasad, the Ministry of Electronics and
Information Technology, introduced The Personal Data Protection Bill to the Lok Sabha. This Bill has not yet been passed in the Parliament, it went through a long consultation and review process and was finally withdrawn.

The main objective of the Personal Data Protection Bill was to protect an individual’s privacy, relating to their personal data. Under the Personal Data Protection Bill, Chapter 5 talks about Right of the Data Principal. In this chapter, clause 20 mentions the Right to be Forgotten.
Clause 20 (l) states that:
The data principal (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 users can delink, delete, or correct an individual’s personal information.

The right to be forgotten is hence related to Article 21 of the Constitution of India i.e. right to an individual’s life and personal liberty. Indian courts through various judgements have been trying to establish the same and protect the most valuable right of the Indian Constitution.

In Justice K.S. Puttaswamy (Retd.) and Anr. vs Union of India, the Supreme Court held
that the Right to Privacy is a fundamental right and it will be included in the Right to Life
enshrined under Article 21 of the Constitution.

The Supreme Court observed that:
The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the Internet.

This case was initiated through a petition filed by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court concerning the Aadhaar Project, which was spearheaded by the Unique Identification Authority of India (UIDAI). The Aadhaar number was a 12-digit identification number issued by the UIDAI to the residents of India. The Aadhaar project was linked with several welfare schemes, to streamline the process of service delivery and removing false beneficiaries. The petition filed by Justice Puttaswamy was a case that sought to challenge the constitutional validity of the Aadhaar card scheme.

The Hon’ble Supreme Court in the said judgement also observed that “the impact of the digital age results in information on the internet being permanent. Any endeavor to remove information from the internet may not result in its absolute obliteration. People are not static; they are entitled to re-invent themselves and correct their past actions.”

Hence, the right to privacy vis a vis the right to be forgotten is inextricably bound up with all exercises of human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails.

In Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. And others, Zulfiqar Ahman Khan demanded the removal of articles written against him on the news website The Quint. He contended that his personal and professional life has been hampered irreparably and further damage is likely to be caused if appropriate relief is not granted against the republication of these two articles. That the original publisher had already agreed to pull down the same, it was directed by the Hon’ble Court that the same ought not to be republished, Zulfiqar Ahman Khan, thus, has a right to ensure that the articles are not published on multiple electronic/digital platforms as that would create a permanent atmosphere of suspicion and animosity towards him and also severely prejudice his personal and professional life. 

The Delhi High Court observed the Right to be Forgotten and the Right to be left alone as
an integral part of an individual’s existence. In the case, X vs. Registrar General, Karnataka High Court recognized the Right to be Forgotten in a heinous crime committed against a woman. The court stated that:

If the right to be forgotten is not recognized in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in cyberspace unhindered.

The Orissa High Court in Subhranshu Rout v. State of Odisha, has also examined the
aspect and applicability of the “Right to be forgotten” qua Right to Privacy, in a detailed
manner including the international law on the subject.
It was observed in the instant case that, the rights of the victim to get those uploaded
photos/videos erased from the Facebook server remain unaddressed for want of appropriate legislation. However, allowing such objectionable photos and videos to remain on a social media platform, without the consent of a woman, is a direct affront to a woman’s modesty and, more importantly, her right to privacy. In such cases, either the victim herself or the prosecution may, if so advised, seek appropriate orders to protect the victim’s fundamental right to privacy, by seeking appropriate orders to have such offensive posts erased from the public platform, irrespective of the ongoing criminal process.

Recently in the 2021 case, Jorawer Singh Mundy v. Union of India and Ors., the High Court of Delhi, directed Google to remove the verdict of acquitting a man in a drug case as it affected his job prospects.

The case of Jorawer Singh Mundy was that he was a professional of Indian origin but an
American citizen by birth. He claimed to be managing investments and dealing with portfolios of real estate etc. When he traveled in 2009 to India, a case under the Narcotics Drugs and Psychotropic Substances Act, 1985, was lodged against him. However, finally vide judgment dated 30th April 2011, the trial court had acquitted him of all the charges. An appeal was filed challenging this order of the trial court, and vide judgment dated 29th January 2013, a Ld. single Judge of the Hon’ble High Court of Delhi upheld his acquittal in Crl. A. No. 14/2013 titled Custom v. Jorawar Singh Mundy.

Thereafter, Jorawer Singh Mundy stated to have traveled back to the United States and pursued law at the University of San Diego School of Law. He then realized that he was facing a huge disadvantage since the judgment rendered by the Hon’ble High Court of Delhi was available on a Google search to any potential employer, who wanted to conduct his background verification before employing him. According to the Petitioner, despite him having had a good academic record, he is unable to get any employment to his expectations, and the reason for the same, according to him, is the availability of this judgment online.

It was further observed by the Hon’ble High Court of Delhi that Jorawer Singh Mundy was
ultimately acquitted of the said charges in the case leveled against him. Owing to the irreparable prejudice which may be caused to him, his social life, and his career prospects, despite the Petitioner having ultimately been acquitted in the said case via the said judgment. Hence, the Hon’ble High Court of Delhi prima facie believed that Jorawer Singh Mundy is entitled to some interim protection, hence directed platforms i.e. Google, Indian Kanoon, and vLex to remove the said judgment dated 29th January 2013 in Crl.A.No. 14/2013 titled Custom v. Jorawar Singh Mundy from their search results. That legal search engine Indian Kanoon was directed to block the said judgment from being accessed by using search engines such as Google/Yahoo etc.,

In the case, Dharmaraj Banu Shankar Dave v. State of Gujarat, Dharmaraj Banu Shankar Dave was acquitted in a kidnapping and murder case and demanded that the judgments
regarding his case not be available publicly. Gujarat High Court rejected the demand of The Right to be Forgotten. 

Need to have a Statutory Recognition – Right to be Forgotten

In the present dynamic society where every work, be it personal or professional is made easy by a click of a button, statutory recognition for the right to be Forgotten or the Right to be left alone is need of the hour. The right to be forgotten can provide major reassurance of safety and can play an important role in improving organization and independence. The personal data of each person is shared and available on various platforms and can be accessed through the Internet. The advent of the internet era has brought immense power as well as negative usage of personal data. Privacy is a key.

Privacy as defined in [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)] is the
condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions.
Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different, and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters that are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.

“The Right to Privacy”, 4 Harv L Rev 193 (1890)]. What seems to be essential to privacy is the power to seclude oneself and keep others from intruding on it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.”

However, the European Union Regulation of 2016 [Regulation No. (EU) 2016/679 of the European Parliament and the Council of 27-4-2016 on the protection of natural persons about the processing of personal data and the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] has recognized what has been termed as “the right to be forgotten”. This does not mean that all aspects of earlier existence are to be obliterated, as some may have social ramifications. If we were to recognize a similar right, it would only mean that an individual who is no longer desirous of his data being processed or stored should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or the establishment, exercise or defense of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

Right to be Forgotten also curtails the fundamental right i.e. Freedom of Speech and Expression. It would also prevent the right of journalists to present news and information to the public freely. Hence, the diverse opinion on the topic does not keep the topic in abeyance.
Presently there is no law in India on this topic. The existing legal vacuum on data protection is an infringement of the fundamental right to privacy vis a vis right to life and personal liberty.

The government of India should work on a comprehensive legal framework to overcome this vacuum. A balanced and equitable statute on the Right to Privacy/ Right to be Forgotten keeping in mind contemporary and future challenges needs to be constituted. There is a need to publish relevant data and eliminate data that is inaccurate, irrelevant, inadequate, or excessive, and that is “no longer material to current public debate or discourse. A law needs to be enacted so that such data are regulated, protected, and complied with legally and as per requirement.