This article is written by Ananya Bose, a student at Hidayatullah National Law University, Raipur. This article discusses the evolution as well as the concept of the Right to be forgotten along with relevant case laws.
This article has been published by Sneha Mahawar.
Table of Contents
In modern times as we can see, we are under the hold of social media. The existence of a person is very much equated to their presence online. It is often the virtual world that has started to decide the credibility of a person in this world.
The remarkable advancement of internet communication knowledge has given us access to the most intimate details of human lives – both good and evil. Our privacy is decreasing day by day and things seem to go public more often. Though we enjoy the gossip we find over the internet about other people, what if we are in their shoes? Imagine the most embarrassing thing you have done and now think about the time when everyone around the world can know about it just by searching the same, won’t it be awful for you and your family?
In today’s time of Google, Facebook, Twitter, and other social media sites, a person’s personal information is no longer confined to just government files and documents. Now, people are just a search away and their details are easily accessible over the net. This dramatic shift in the kind and scope of personal information on the web is a key problem. Well, to show up as a result of a google search you need not be an overachiever or have committed a criminal offence.
Background of the right to be forgotten
In Argentina, a lawsuit involving the constitutional right to be forgotten and online tools was successfully resolved. Virginia Da Cunha, an Argentine music diva, won a preliminary court decision in 2009, ordering Google and Yahoo to remove Internet indexed listings linking her to pornography or prostitution. In 2010, the requests court changed its mind, and the Supreme Court of Argentin finally ruled in favour of the websites around the end of 2014.
In 2014, the European Union’s Court of Justice (CJEU) considered the right to be forgotten. But that was neither the start nor the end of the historical context of the choosing to be forgotten. The legal battles began long before the CJEU’s selection and continue to this day.
The European Union’s Court of Justice discovered the right to be forgotten in the current EU Data Protection Directive in 2014. It was discovered that the law required a halt to the online publication of findings that were no longer relevant after a certain amount of time had passed and the individual required them to be removed. Google was seen as an information regulator who needed to respect people’s right to own their own data.
The ruling also raised controversy since it established a precedent for the EU’s ability to sustain a judgment against an American business despite the fact that its servers are located outside of Europe (whether in California or somewhere else). Google claimed that no information processing took place in Spain; it said that it just maintained a sales office there, thus the EU information security rule didn’t apply. Since the decision, Google has received over 2.5 million requests from Europe to delete data. As far as some people are concerned, Google deletes the information. It claims to have done so in about 43% of the solicitations it has received. For others, it demonstrates that the data is in the public interest and that they will not discard it.
In the United States, there is still no choice to be forgotten, at least in part. Regardless, New York State briefly introduced a measure that made the right, forcing online indexes to remove inaccurate, unnecessary, inadequate, or unreasonable material about persons. The Bill defined this information as having been distributed a long time ago, it is no longer relevant to current public discourse, and it is genuinely harming the requester’s expert, financial, reputational, or other interests. Sentenced lawful offences, valid concerns such as brutality, and matters of great current public interest in which the requester’s work is central and relevant to the case were all prohibited by the measure.
In 2018, Google took its first two ‘right-to be-forgotten’ lawsuits to preliminary hearings in the United Kingdom. The two are money managers who were charged with crimes that are now covered by an English statute meant to rehabilitate lawbreakers, which states that they can be ignored and don’t have to be revealed to businesses unless they satisfy a very unusual exception.
Since roughly 2014, Google and France have been fighting in court on the scope of the right to be forgotten, which is presently before the CJEU. France requires concessions under the possibility of removing data from online indexes all over the world. It has been argued that the right is pointless if it is likely to be viewed by someone in the United States or anybody in Europe who can impersonate their IP address. Google has limited the right and fought France’s efforts to expand it, enabling the option to be forgotten first for Google’s European spaces and then for any European customer.
The General Data Protection Regulation should greatly strengthen the right to be forgotten in Europe. Article 17 of the GDPR establishes the Right to Erasure, which permits an individual to request that personal data on them be erased promptly by a regulator.
The Right to be Forgotten in India is handled by the Personal Data Protection Bill.2019 (PDP Bill) The Right to be forgotten does not yet have formal approval in India. Nonetheless, the Supreme Court ruled in the Justice K.S.Puttaswamy(Retd) v. Union of India, 2018 that the right to security is a fundamental right.
The Supreme Court declared the right to privacy a fundamental right in a landmark judgment in 2017. “The right to security is maintained as an intrinsic element of the right to life and individual freedom under Article 21 and as a portion of the opportunities guaranteed by Part III of the Constitution,” the Court stated at the time.
When the legal administration enters Phase III of its major e-courts project, privileges such as the Right to be forgotten should be inscribed into any innovative arrangement generated for legal information storage and the board.
With a more profound combination of innovation and information digitisation, a simple Google search may provide a wealth of information about a person, potentially jeopardising an individual’s status and nobility as guaranteed by Article 21 of the Indian Constitution.
Many high courts have now expressly recognised the right to be forgotten in their judgments, following international law on the subject.
What is the right to be forgotten
This right gives the right to have your information that is publicly available to people at large get removed from different sources such as accessed online, engines, libraries, blogs, or any other public platform, once the personal data in dispute is no longer required or relevant.
This right has been recognised by the European Union under the General Data Protection Regulation as a statutory right and has also been upheld by various EU and English courts.
Who has the right to be forgotten
In India, no such law has been made that provides for the right to be forgotten, however, the Personal Data Protection Bill, 2019 recognises this right.
Section 20 of the Bill granted any entity has the right to limit or protect the prolonged discovery of their private data when such records;
- have provided the aim under which it was obtained, or are no longer required for any such purpose;
- have been made with the permission of the person, which approval has now been withdrawn; or
- were made in contravention of the PDP Bill or any other law in force.
The Clause made this provision valid only if the adjudicating officer constituted under the Bill issued an order. The officer has to take various things into account while passing such an order, which include;
- the sensitivity of the private information
- the extent of the disclosure, and the extent of access and availability that was sought to be restricted or avoided,
- the individual’s role in the society,
- the public’s importance of the private information
- the essence of the release of information and the person’s activities.
General Data Protection Regulation
GDPR is a set of regulations enforceable by law for the protection of the personal data of individuals in the EU. Because the Act applies to all websites that attract European visitors, even if they do not specifically reach out to potential customers to EU citizens, it should be followed by all sites that attract European visitors.
The right to be forgotten has been given under Section 17 of this framework. The right only applies to data held at the time the request is received. It does not apply to data that may be created in the future. The right is not absolute and only applies in certain circumstances.
Personal Data Protection Bill, 2019
As discussed above, Section 20 of the Bill recognises this right. Along with this Section, there are also a few more provisions that support the essentials of the right to be forgotten.
Clause 18 relates to the ‘right to correction and erasure,’ which overlaps with the right to be forgotten somewhat. This includes the correction of inaccurate or deceptive private information as well as the removal of private information that is no longer required for the processing and analysis. The individuals and organisations to whom such information was disclosed must be informed whenever the data trustee makes such a modification or erasure.
Clause 9 states that a data trustee cannot keep personal information greater than the actual period for which it was acquired unless the data principal voluntarily gives consent or there is legal coercion. Data trustees are also required to perform the regular review to determine whether or not personal data should be kept.
Clause 36(b) states that the right to limit disclosure of personal data does not apply in which the particular data is required to enforce a lawful authority or claim, contest charges, get legal counsel, or other similar purposes.
Comparative analysis with the EU and the USA
The European Union
Various countries across the world have reacted differently to the idea of the Right to be forgotten. The EU has made tremendous growth in this sense. It has taken various steps to strengthen its provisions for the right to be forgotten. The GDPR, which replaced the 1995 Data Protection Directive, came into effect in April 2016. The European Union passed the Data Protection Directive in 1995, which controlled the exclusion of personal data within the EU. It is a necessary part of EU privacy and human rights law.
Any individual has a right to request for erasing the personal data for various reasons which included being not in line with Article 6(1) which is for lawfulness, a case where the interests of the controller of the data are being overshadowed by the individual’s interest and fundamental right and duties, where the protection of personal data is necessary. Due to these reasons, Article 17 of the Act defines the situation where an individual can request and exercise their right for erasing their data.
The European Court of Justice ordered Google to remove “inadequate, irrelevant, or no longer relevant” data from its search results when a citizen requested it. This decision was given in Google Spain SL v. Agencia Española Protección de Datos, 2010. This decision was crucial in enforcing EU data protection norms and regulations, pa+rticularly the EU’s General Data Protection Regulation. The ruling is termed the “right to be forgotten” by the public.
Gonzalez requested that the story be deleted from the newspaper in 2009 when a Google search for his name turned up a newspaper article from 1998. However, his request was declined. Gonzalez then went to Google to have the piece removed when his name was searched. The user should fill out a form given on the official site of the search engine website to exercise his or her right to be forgotten and get the information deleted from the given search engine at the earliest.
If Google appeals to a data protection agency decision, it may face legal action. The European Union has requested Google to divide up requests from EU citizens across all international domains. In the form, users can enter the name for which they want search results to be removed. The applicant must first select their country of residency, then supply personal information, a list of URLs to be erased along with a brief explanation for each, and legal proof.
The United States of America has established a complex system of rules to safeguard its citizens. New York quickly introduced Bill A05323. Furthermore, in March 2017, New York State agents Tony Avella and David Weprin proposed legislation that would allow people to demand that web search engines and online speakers remove information that is ‘off base’, ‘insignificant,’ ‘deficient,’ or ‘inordinate,’ that is “as of now not material to energise public discussion or talk”, and that is harming the subject.
Melvin v. Reid,1931 and Sidis v. FR Publishing Corp.,1940 are two notable cases with significant implications. The Court reasoned, “Any individual who drives a presence has the choice to enchant, which reminds the freedom from unwarranted attacks on his personality, social position, or prestige.” While the aggrieved party, William James Sidis, was a former child wonder who wanted to go through his adult life quietly and unobserved, a piece in The New Yorker threw his plans into disarray.
In this judgement, the Court confirmed that the capacity to oversee one’s own life and real factors around oneself has limits, that there is cultural worth in scattered real factors, and that an individual can’t overlook their well-known status since they need to.” Despite these frigid advances, the opportunity of a government rule or an established correction accommodating an independent arrangement remains. The option to be neglected is very frail in the United States, notwithstanding the way that it is inconsistent with the principal change to the United States Constitution, which ensures the right to speak freely of discourse and articulation. Therefore, it is contended that the right will very likely have an outcome in one more type of restriction. The Bill was largely based on the European Court of Justice’s decision in Google Spain SL v. Agencia Española de Protección de Datos, 2010.
Advantages with respect to the right to be forgotten
The right to be forgotten can provide major reassurance of safety and can play an important role in improving organisation and independence. State and non-state artists have a wide range of powers when it comes to internet-based personal data and psychological profiles. Allowing people to take responsibility for their data gives them more control over their enhanced personalities. Most internet personal data is irrelevant to public interest considerations and has unquestionably more inherent value to the individual than culture in general. The continuous jurisprudential and administrative advancements in this regard have been sensitive to this, seeing the contrast between what is valuable to an individual, what is fascinating to the general public, and what is in the public interest.
Criticism surrounding the right to be forgotten
There were concerns that an “overly broad right to be forgotten” would necessitate Internet monitoring since “information subjects might force web search tools or sites to remove specific material, potentially rewriting history.” It is permissible for people not to be forever defined by their history in some circumstances. The Google Spain decision sheds some light on this, recognising the need for significant considerations – such as the nature and responsiveness of data, the public interest, and the pretended by the information subject in open life – while striking a fair balance between the information subject’s right and the interests of web clients.
Google received a slew of requests shortly after the Google Spain ruling, the Google’s 2017 Transparency Report provided some guidance as to how it has handled requests, including examples of some of the results of eradication requests. “we didn’t delist the URLs given his past position as a well-known person,” one response said, while another said, “we delisted 13 URLs since he didn’t have all the earmarks of being now involved in political life and was a minor at the time. From the perspective of a child’s rights, confining children to negative aspects of their history might hinder their turn of events and lower their self-awareness value,” according to Article 19.
There are actual benefits to being forgotten; yet, there are also risks associated with the right, particularly surrounding the demand for privileges and the negative influence this can have on the right to freedom of speech. In the absence of appropriate administrative safeguards, online indexes may become the ‘judge, jury, and executioner’ of the right to be forgotten. There are risks associated with imposing such a dynamic authority on a private substance, particularly given the need to balance competing liberties, which is often the domain of courts. The Electronic Frontier Foundation expressed concern that the “uncertain requirement imposed on web sites” might “blue pencil” the internet.
Recommendations on how to implement the right to be forgotten
The Right to be forgotten does not exist in the case of judicial rulings, according to the Madras High Court. In India, most people would say that the Right To be forgotten is still in its early stages. To properly perform this right in India, the following should be recommended:
Recent incidents demonstrate how seriously this Bill should be implemented. The necessity for individuals to be protected against advanced stage hazards is critical. An arrangement that makes sense of clear situations with clear results is also anticipated to avoid any potential conflict between the two fundamental rights.
- A strong information security policy would go a long way toward immediately instilling this in each person. Right to be forgotten may be used to assist individuals to secure their security even further.
- Online search tools and large computerised stages can modify their principles and decide on the destruction of particular information by disconnecting. In any instance, even after being charged by a candidate in the Kerala High Court, large corporations such as Google have retained certain data. This demonstrates that this method of implementing the right is the least practical.
- Regardless of how the PDP Bill was rejected, several courts have interpreted the Right to be forgotten in their decisions, taking into account international law. While the Delhi and Karnataka High Courts have recognised and maintained the right, there is still a long way to go in terms of a precise method that effectively protects the right to data and the right to free speech and expression. In the meanwhile, they can file a complaint to assert their fundamental right to protection.
However, combining the three and systematically using them might aid in the appropriate establishment and implementation of Right to be forgotten in India.
Finally, it is worth noting the evolution of the right to be forgotten in different jurisdictions.
Right to privacy and the right to be forgotten
An actress filed a complaint in the Delhi High Court, alleging that recordings that were shared on internet-based stages without her consent should be removed. The court determined that the female’s right to privacy must be protected. On the other hand, internet stages questioned their right to transmit.
About the right to privacy:
The Supreme Court declared the Right to privacy a key right in the Puttaswamy v. Union of India case, in 2017. The Supreme Court recognised that the Right to be Forgotten is a part of the broader right which is Right to Privacy . Article 21 protects the Right to security as an intrinsic part of the Right to life and individual liberty, as well as a component of the possibilities guaranteed by Part III of the Constitution.
Concerning the right to be Alone:
It does not mean that one is withdrawing from society. It is assumed that society will not interfere with individual decisions as long as they do not harm others. The Right to be forgotten is derived in part from Article 21’s right to privacy and in part from Article 14’s right to dignity.
Issues associated with the right to be forgotten
Enforceability against private individuals:
Normally, the Right to be forgotten will be used against a private individual (a media or news site). This raises the question of whether fundamental rights, which are generally enforced against the state, may be used against private individuals.
Protection v. Data:
Availability of the Right to be forgotten in a given situation is contingent on the presence of other conflicting rights, such as the choice of free articulation or other distribution privileges.
For example, a person would most likely need to de-link data about his criminal history and make it difficult for others to find particular editorial reports when they google him. This puts the individual’s fundamental right to be left alone, as guaranteed by Article 21, against the media’s right to examine concerns, as guaranteed by Article 19.
In the absence of an information assurance rule to Right to be forgotten, there have been a few inconsistent and unusual judgments of the right by several high courts. In India, courts have repeatedly recognized or denied the use of Right to be forgotten while completely ignoring the more thorough spiritual inquiries that are associated with it.
Judicial perspective on the right to be forgotten
An American citizen, namely Jorwar Singh Mundy, sought to overturn the Delhi High Court’s verdict in a Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) body of evidence against him, in which he was cleared of all charges. He claimed that the judgement’s internet accessibility constituted a blemish on his reputation. According to the Delhi High Court, the Right to be forgotten allows persons to have data, recordings, or images about themselves removed from specified web records so that web indexes cannot locate them. It was also mentioned that this freedom allows an individual to silence earlier events in his life.
The Karnataka High Court upheld the Right to be forgotten while also recognising that this would be consistent with the practice in western countries where this is a regulation. In delicate instances, such as assault or impacting the humility and infamy of the individual concerned, the right to be forgotten should be preserved.
The Madras High Court held in the case that an accused individual is entitled to have their name deleted from rulings or decrees, particularly those that are visible in the public domain and accessible through web search tools. In reaching its decision, the Court noted that it is the Court’s responsibility to protect people’s rights to privacy and reputation until the Data Protection Act is approved by the legislative body. It went on to say that when the council approves the Data Protection Regime, it should include an objective approach for dealing with requests for the suppression of names of those who have been accused of crimes but have been found not guilty.
- What is the situation with Google in Spain?
The Google Spain case is a request from a Spanish resident to have links to personal data from his past erased from Google’s database. The Court of Justice of the European Union did not go as far as forcing the deletion or de-ordering of data in its ruling last May, but it did establish a series of requirements on web search tools to safeguard residents’ rights to information assurance.
- What does this administration truly ask of web search engines?
When the individual data is no longer ‘applicable,’ ‘relevant,’ or ‘unreasonable relating to the reason for which it was handled and obtained,’ the Court expects Google and other web search engines to separate the complainant’s names from a particular query.
- Are there any exceptions?
Indeed. The materiality of the right to the forgotten isn’t pre-set. The right suggests that where individual data has a place with well-known persons such as prominent names, government officials, or others in the public eye, indexed listings should not be changed since the general public wants full access to this data.
- Do we have the choice of being forgotten available on the internet?
Indeed, the opportunity to be forgotten is a critical counterbalance to unjustified, inaccurate, insulting, defamatory, or simply bad material that is routinely disseminated nastily or by accident.
Safety should be introduced as a cause for appropriate restrictions under Article 19 by a large constitutional amendment to carry out the right to be forgotten. There is a requirement for system growth, and the choice of being forgotten might be limited. For instance, while exercising the right to articulation and information; compliance with legal duties; the completion of a project in the public interest or for public health; scientific or verifiable exploration aims or quantifiable purposes; or the foundation, exercise, or safeguard of legitimate situations.
The Parliament and Supreme Court should conduct a thorough examination of the Right to be forgotten and devise a method for balancing the competing rights to privacy and the freedom of speech and expression. Data is a precious resource in the digital era that should not be left uncontrolled. Therefore, in this scenario, India should establish a strong data protection regime.
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