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(Omkar Upadhyay is a third year student of National Law University, Nagpur.) Introduction Following the trends of European legal system, India too recently incorporated the ‘right to be forgotten’ in its proposed data protection regime which awaits enactment. The said right is of prime importance particularly in the modern technological era where the individuals have left information trails while accessing the internet. Moreover, given the vulnerability of personal data available freely on the internet, it becomes pertinent to hone privacy, as it is not only limited to tangible, but also extends to intangible world. The concern for privacy is more serious for the digital world where “forgetting has become the exception, and remembering the default”.[i] However, a wrangle of arguments and criticisms has been leveled against the said right. While one side favours it for ensuring privacy in the digital world, the other side primarily laid concerns on its possible tussle with other rights particularly right to access information and right of expression. The Origins of the Right: In India and Abroad
At the onset, it must be laid down that the right to be forgotten enables an individual to request for deletion of his personal data from the internet sources so that it remains no longer accessible. Such a right ripens when either the consent of the data principal has been revoked or the purpose for which the data was given has been fulfilled and the continued retention has become unjustified. This right resembles the French criminal law concept of ‘le droit à l’oubli’, in other words, ‘right of oblivion’ which aided those criminals who have served their punishment to request the authorities for restraining publication of their criminal records.[ii] The roots of this right are traceable to the EU Directive 95/46/EC which mandated that the personal data of an individual shall be retained only for that period of time which is necessary to fulfill the object of such collection. However, the ultimate concretisation of this right was done in the pronouncement of Google Spain et. al v. Agencia Espanola de Proteccion de Datos (“AEPD”) or as famously known as the ‘Google case’ or ‘Costeja case’, which involved an individual asking for deletion of a search result of a newspaper article dating back to several years. The contention was that the information which appears by searching his name is no longer relevant and is in fact prejudicial to his reputation as the news article shows his property being auctioned due to failure of paying social security debts. He thus made request to Google, a search domain, for removing that article from search results, which was denied. When the dispute went to the CJEU (Court of Justice of the European Union), the Court affirmed right to be forgotten and directed Google to remove the search result. Thus what was deleted was the search result, not the original article. It was merely made inaccessible on the internet. This leads to the fact that there are two variants of right to be forgotten, first being ‘right of erasure’ (as exists in French criminal law) and the other ‘right to oblivion’, which is evident from this ruling.[iii]While the former ensures that a particular piece of information would be completely obliterated from written memory, the latter entails that the information would only be made inaccessible so as to be out of reach of people. Following the pronouncement, the European Union formulated General Data Protection Regulation (GDPR) which gave an express mention to the right to be forgotten under Article 17 as ‘right to erasure’. In India, the seeds of this right were first sown through judicial pronouncements of the High Courts and its status was ultimately settled by the Supreme Court. The Karnataka High Court and Gujarat High Court presented contradictory views as to whether right to be forgotten exists in India. In Sri Vasunathan v. The Registrar General & Ors (2017), The Karnataka High Court was presented with a request of deletion of a name from the Court documents concerning sensitive nature of the matter. The High Court here affirmed the party’s right to be forgotten and allowed the same remarking that, “this would be in line with the trend in Western countries where they follow this as a matter of rule 'right to be forgotten' in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.” However, the High Court of Gujarat in Dharamraj Bhanushhankar Dave v. State of Gujarat (2017), denied any such right when the petitioner, who were earlier involved in a criminal matter and were charged with offences as that of criminal conspiracy, causing disappearance of evidence, etc. and were later acquitted of those charges, approached the Court to restrict publication of a judgment and judicial orders passed against him as it would disparage his image. The petitioners contended that since the judgment was non-reportable, its publication has violated Art. 21. Nonetheless the position was settled in the judgement of Justice K.S. Puttaswamy (Retd.) v. Union of India (2018). Justice S.N. Kaul therein held the right to be forgotten as forming an important component of privacy, now a fundamental right, and observed that, “the access to information, which an individual may not want to give, needs the protection of privacy.” This laying of law by the Supreme Court thus cleared the air surrounding the right to be forgotten and established firmly that this right is an integral component of right to privacy, now a fundamental right. This pronouncement is thus in line with the French criminal law concept, as has been discussed earlier, and would thus allow those parties to a particular dispute, usually criminal or sensitive in nature, to have their name redacted from the judgement or the Court order so as to preserve their privacy as well as their dignity and allowing them to start their life with a clean slate. Has the Legislature Got it Right? : Analyzing the Viewpoint of Proposed Data Legislation Following the Puttaswamy verdict, the Parliament sought to give teeth to the privacy rights of the citizens by giving it statutory protection. In line of this, a committee of experts was set up under aegis of Justice (Retd.) B.N. Srikrishna. The committee noted that right to be forgotten refers to an individual’s ability of “limiting, de-linking or even deleting the personal information available on the internet if that information is against the interests of the person concerned.” Thus, in the opinion of the committee the legislation enacted for securing the personal data must empower the holder of the right to prevent disclosure of such information which is unwanted. Moreover, the committee has also placed emphasis of the ‘consent’ of the data principal in allowing disclosure of information. Following the report, the parliament came up with the Personal Data Protection Bill, 2017 which didn’t get to see the light of day due to completion of tenure of the government. Then Personal Data Protection Bill (PDP), 2019 was introduced, which in certain manner was comparable to EU’s GDPR. Under the bill, the right to be forgotten has been conceptualized under Section 20, which allows the data principal to restrict or prevent continued disclosure of personal data on internet. What is to be noted here is that while committee recommendations allowed the individual to request for deletion of the information, what the Bill provides for is the right to merely restrict the data receiver from disclosing it. Thus what they have incorporated is the other version of the right, i.e., right to oblivion instead of right of erasure. Therefore, this viewpoint of the lawmakers stands in contradiction with the GDPR as well as the recommendations of the committee report. Whereas both, the GDPR and the report of the committee favours a wider conception of right to be forgotten, the Bill has relegated it to merely mean right of asking the data fiduciary to restrict continuing disclosure of information. Conflicts with Other Rights While expounding upon the right to be forgotten, Justice SN Kaul in his observations cautioned that, “this right, as a part of the larger right of privacy, has to be balanced against other fundamental rights like the freedom of expression, or freedom of media, fundamental to a democratic society.” The Constitution of India provides for multiple rights and they have been strengthened and reshaped by the judiciary through various pronouncements. However, there exist no hierarchy among those rights.[iv]Thus they are to be reconciled. Firstly taking upon the issue that whether right to be forgotten contradicts with right to freedom of press and media in expressing their viewpoint, it is to be noted that the Indian lawmakers have tackled this possible conundrum by expressly providing for certain exemptions for journalistic purposes, as is mentioned under draft Sec. 36(e) wherein the personal data could be processed giving due regard to the mandate of code of ethics as are issued by Press Trust of India. This, along with other exemptions ensures that right to be forgotten is not an absolute right and deviations could be made where larger public interest is involved. Apart from this, various other exemptions, such as those for research and innovation purposes, preventing or investigating offences, statistical purposes etc., are also available wherein the personal data can be processed to serve the greater public use. Thus the rights available under the Bill would be limited in this sense. Secondly, it is contended that it would also obstruct with the right to access information if the data principal decides to take down his information which was hitherto available in the common cyberspace. This criticism stands on frivolous grounds. This is because of the fact that what the right to be forgotten protects is the personal data and what the right to access information pertains to is data of public utility. The right to access information cannot be given such wide ambit lest it leads to incursion of privacy. Currently, the Right to Information Act, 2005 prohibits disclosure of certain information vide Sec. 8 which exempts certain information particularly those which are prejudicial to the sovereignty and integrity of India, information which if disclosed would amount to breach of privilege of Parliament and such alike. Furthermore, Sec. 8(1)(j) has specifically exempted, “information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual.” However, what comes within the ambit of ‘personal information’ has hitherto been left undefined. Nonetheless, whether a particular information is of personal nature so as to cause breach of privacy if it is publicized is to be determined by an authority, which according to the Bill would be named as ‘Data Protection Authority of India’ as mentioned in Chapter IX of the Bill. Concluding Remarks The right to be forgotten suffers from lack of uniformity in its definition and lack of universality in its operation. The need of the hour is therefore for arriving at a definitive meaning and perception of this right and balances the seemingly contradictory rights. As it is said, “my liberty ends where yours begins”, similar must be the attitude while reconciling these seemingly irreconcilable rights. Nonetheless, as Justice Spare has noted in the Puttaswamy verdict that privacy finds its roots not only in Art. 21 but also in Art. 19 and this makes freedom of expression a genus and right to be forgotten one of its species. [i] VIKTOR MAYER-SCHÖNBERGER, DELETE: THE VIRTUE OF FORGETTING IN THE DIGITAL AGE, (1 ed. Princeton University Press 2011). [ii] Jeffrey Rosen, The right to Be forgotten, 64 STAN. L. REV. ONLINE 88-89 (2012) [iii] Meg Leta Ambrose &Jef Ausloos, The Right to be Forgotten Across the Pond, 3 JIP14 (2013) [iv] Shaniqua Singleton, Balancing A Right to be Forgotten with Freedom of Expression in the Wake of Google Spain v AEPD, 44 GA.J. OF INT’L & COMP. L. 165, 179 (2015)
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