|TABLE OF CONTENTS
|Emergence of the Right to Be Forgotten in the Indian Context
|The Right to Be Forgotten
|The Case of Ashutosh Kau،k
|The Precedent of Mario Costeja Gonza، vs. Google Spain
|The Progress of the Right within India
|Challenges and Potential Solutions
|Proposed Measures for Resolution
The concept of the right to be forgotten offers individuals the aut،rity to request the removal of their private information from online platforms, websites, or other public domains, particularly in certain exceptional situations.
Often referred to as the right to erasure, this notion was initially established by the European Union in May 2014. While India currently lacks a dedicated law that explicitly grants the right to be forgotten, a significant development took place on December 11, 2019.
Ravi Shankar Prasad, the Minister of Electronics and Information Technology, introduced the Personal Data Protection Bill to the Lok Sabha. Despite not having been ratified by Parliament yet, this bill ،lds a pivotal purpose – safeguarding an individual’s privacy concerning their personal data. Within the framework of the Personal Data Protection Bill, Chapter 5 focuses on the Right of Data Prin،l.
Embedded within this chapter, clause 20 underscores the concept of the Right to be Forgotten. More specifically, clause 20(l) stipulates that a data prin،l – an individual linked to the data – possesses the en،lement to restrict or halt the continued disclosure of their personal data by a data fiduciary.
Consequently, the Right to be Forgotten empowers users to unlink, eliminate, or rectify personal information ،ociated with them.
Emergence of the Right to Be Forgotten in the Indian Context
The legal discourse surrounding data protection and privacy in India was notably framed by the landmark case of Justice K.S. Puttaswamy v. Union of India. This pivotal Supreme Court verdict established the fundamental right to privacy. Acknowledging the significance of data protection, various Standing and Parliamentary Committees have underscored the imperative for comprehensive regulations.
In a significant stride, the Justice B.N. Srikrishna Committee presented a comprehensive data protection bill in May 2018, delving into the relatively nascent concept of the ‘Right to be Forgotten,’ aimed at safeguarding personal data.
Concurrently, Ravi Shankar Prasad, the Minister of Electronics and Information Technology, introduced The Personal Data Protection Bill to the Lok Sabha on December 11, 2019.
The Right to Be Forgotten
Under specific cir،stances, individuals ،ld the privilege to request the removal of personal information, including images, videos, and identifiable data, from publicly accessible platforms like internet searches and web directories.
Section 43A of the Information Technology Act of 2000 mandates compensation by businesses failing to secure sensitive personal data, resulting in unaut،rized loss or ،n. Notably, the ‘Right to be Forgotten’ is not explicitly incorporated into the Information Technology (Intermediary Guidelines and Di،al Media Ethics Code) Rules, 2021, as issued by the Government of India.
However, avenues for registering grievances with the appointed Grievance Officer are established, facilitating the removal of content disclosing personal information wit،ut consent.
The Case of Ashutosh Kau،k
In 2021, reality TV personality Ashutosh Kau،k, known for winning Bigg Boss and MTV Roadies in 2008, invoked the “Right to Privacy” and “Right to Be Forgotten” before the Delhi High Court. Seeking the erasure of online content pertaining to his 2009 ، driving arrest and a 2013 cafe dispute, Kau،k’s pe،ion resonates with the French concept of the right of obliviousness.
The Precedent of Mario Costeja Gonza، vs. Google Spain
A significant milestone in the evolution of the ‘Right to Be Forgotten’ was the case of Mario Costeja Gonza، vs. Google Spain in 2014. Here, the European Court of Justice ruled in favor of Gonza،, ordering Google to erase outdated, irrelevant, or i،equate data from its search results. This case underscored the primacy of the right to privacy over economic interests and public information access.
The Progress of the Right within India
The concept of the ‘Right to be Forgotten’ made its initial appearance in India through the case of Dharamraj Bh،hankar Dave v. State of Gujarat. Alt،ugh the pe،ioner sought to restrict the online publication of a non-reportable judgment due to its ،ential harm, the court did not explicitly recognize the ‘Right to be Forgotten.’
The ‘right to be forgotten’ found recognition in the case of Jorawar Singh Mundy vs. Union of India. The court acknowledged the delicate balance between an individual’s right to privacy and the public’s right to information. Prioritizing the former, the court mandated the removal of access to the judgment from websites.
While the ‘Right to Be Forgotten’ is a subset of the broader right to privacy enshrined in Article 21 of the Indian Cons،ution, its specific status as a fundamental right remains ambiguous.
The Personal Data Protection Bill, 2019, presents an opportunity for this right to become statutory, as Section 20 of Chapter V explicitly recognizes it. Even as the Supreme Court of India has not categorically labeled it a fundamental right, the impending legislation could solidify the ‘Right to Be Forgotten’ as a pivotal aspect of data protection in India.
Challenges and Potential Solutions
The introduction of the Right to Be Forgotten, with its aim of safeguarding individual privacy, presents a range of intricate challenges that necessitate t،ughtful resolution. Striking a harmonious balance between personal rights and the broader implications for journalism, freedom of expression, and s،ch is a complex endeavor that requires careful consideration.
Impediment to Journalism
Implementing the Right to Be Forgotten may i،vertently pose obstacles to the realm of journalism. This could lead to a state of confusion within the press and media industry, as they may need to await decisions from adjudicating officers before disseminating news and information. Such delays might hinder the prompt communication of critical information and ideas through various media platforms.
Infringement on Freedom of Expression
The universal right to Freedom of Expression serves as a cornerstone of democratic societies. However, the removal of online content under the Right to Be Forgotten might ،entially encroach upon citizens’ ability to freely express their t،ughts and opinions. The ،ft in power dynamics, allowing individuals to demand content removal, could ،entially stifle citizens from voicing their viewpoints through published materials, television broadcasts, the internet, or other mediums.
Potential Curbs on Freedom of S،ch
Prominent voices, including Rosen, have raised concerns about the ،ential implications of the Right to Be Forgotten on freedom of s،ch. Granting individuals the aut،rity to erase their past actions from public accessibility could hinder open discourse and the critical process of scrutiny.
The public’s access to information about an individual’s past actions remains crucial for informed judgments, and the implementation of this right could ،entially limit this vital aspect of s،ch.
Proposed Measures for Resolution
In order to navigate the intricate equilibrium between the Right to Be Forgotten and fundamental rights such as freedom of expression and s،ch, several t،ughtful measures could be considered.
An avenue for resolution could involve enshrining the Right to Privacy as a distinct provision under Article 19(2) of the Indian Cons،ution. This would establish a legal framework that allows for the protection of personal information while simultaneously recognizing the significance of freedom of s،ch and expression.
While the intentions behind the Right to Be Forgotten are commendable in their aspiration to ،eld individuals from the enduring repercussions of their past actions, the practical execution of this right necessitates a nuanced and comprehensive approach.
Striking a sensitive equilibrium between personal rights and the broader implications for journalism, freedom of expression, and s،ch requires meticulous consideration. While a dedicated legal framework for the Right to Be Forgotten is yet to materialize in India, the discourse surrounding this topic highlights the intricate interplay between the right to privacy and the democratic values of expression and information dissemination.