Right to be forgotten: Is it fundamental to our lives?
Updated: Aug 20, 2021
Author: Isha Pandey
In today’s media intrusive day to day operations, have you ever thought of sharing your personal data which though served its purpose cannot be removed from the parent source? In India, unlike the EU the controller does not have a set of erasure obligations who must comply with the subject’s data erasure rights. The right is codified and found in General Data Protection Rights along with the right to erasure. In India, there is no right that specifically provides for the right to be forgotten as of now but a draft called the Personal Data Protection Bill, 2019 which recognizes this right. In section 20 of this bill, it gives individual the right to restrict and discontinue the disclosure of data on following grounds,
I) the data has served its purpose for which it was collected or is no longer necessary,
II) was made with consent of the individual and now the consent has been withdrawn,
III) was made contrary to the PDP bill or any law in force.
What is the 'Right to be forgotten'?
This is a right to get publicly available personal information removed from the internet, search, databases, websites or any other public platforms once the personal information in question stands irrelevant. This right came to the light after Jorawer Singh Mundy& UOI & ors[i] case in which justice Pratibha M. Singh provided the interim relief to the petitioner. Jorawer Singh approached the HC claiming that he was acquitted in the 2013 case in which criminal charges were put against him but the judgment of the case appearing on google and Indian kanoon has besmirched the chances of him getting a job and future job prospects. Delhi HC observed that the case would have left room for “irreparable prejudice” that would be causing difficulties in Mundy’s “social life and job prospects.” The HC asked Google to remove the judgement and Indian kanoon to block the judgement so that it cannot be accessed through search engines like Google and Yahoo. Data and Information are like black gold in today’s age of burgeoning Information sector. Data once released in public domain cannot be retracted as it becomes available at everyone’s fingertips.
As it is readily available the chances of it being misused gets double. Sometimes people seek revenge in the form of fake information, fear mongering, defamation, fake cases of #metoo, and revenge porn which breach a person’s right to privacy guaranteed under article 21 of the Indian Constitution.
Right to be forgotten and right to privacy: parts of the same subdivision,
Article 21 under chapter III of Indian constitution provides for life and personal liberty according to procedure established by law. There are a set of substantive rights which flow from this right. Right to life, one of the components of this right is broadly interpreted by the SC. The right to life does not merely mean mere animal existence but a life of quality which was interpreted in Kharak Singh vs The State of U. P.[ii]& Others. Right to life has a broad meaning attached to it. The list of rights it contains are right to pollution free air, right to health, right to livelihood, right to go abroad, right against solitary confinement. The purpose of this article is of such high degree of ethical virtue that it even espouses manynon-justifiable rights given under part IV of the constitution in the form of right to basic education, nutrition and cultural heritage. One of the most recent rights added under this umbrella is right to privacy.
The part and parcel of this right is right to be forgotten. In KS Puttaswamy v Union of India[iii] case in which the SC held in respect to right to be forgotten “if we were to recognize a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processes 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.”
In another judgement the Orissa HC in Subhranshu Rout v stateof Odisha[iv] 2020 case examined the right to be forgotten as a remedy for victims of sexually explicit videos/ pictures posted by spurned lovers to harass victims.
The Supreme court of India tried to maintain a balance between right to be forgotten in KS Puttaswamy case stating that all aspects of information cannot be obliterated as some might have social ramifications. Through this one can understand if one gets explicit right to be forgotten, such right might come in conflict with the other person’s existing rights like right to information, right to freedom of speech and expression, public interest and public health. The SC has stated that person who is not desirous of his personal data to be processed or stored should be able to remove it where such person information has served its purpose and is no longer necessary or incorrect. As of now India doesn’t have the right to be forgotten in explicit form but if the PDP bill becomes an act, it will give users the right to remove the data if data is found to be incorrect or is no longer necessary, was made with the consent of individual and now such consent is withdrawn or anything which was made contrary to the PDP or existing laws.
Likewise, in the Jorawer Mundy’s case the data present on the internet had caused him irreparable losses which were against his right to privacy. It was rectified by removing the data as it had served its purpose. In today’s arena, the right to be forgotten is highly needed but with restrictions so that it does not cause any social ramifications because almost all the information is stored on the internet and can be misused by anyone.
[i] W.P. (C) 3918/ 2020 & CM APPL. 11767/ 2021 [ii] 1963 AIR 1295, 1964 SCR (1) 332 [iii]2017 10 S.C.C. [iv]BLAPL No. 4592 of 2020, High Court of Orissa. Do you have a ‘right to be forgotten’? Here’s what it means and how Indian courts view it https://theprint.in/judiciary/do-you-have-a-right-to-be-forgotten-heres-what-it-means-and-how-indian-courts-view-it/666226/