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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

The Right to be Forgotten

Introduction:

In this era, information on the Internet is permanently available which has resulted in a change of storing and recalling of the information. The search engines, social media platforms, news articles allow information that individuals may wish to keep it private like child pornography, disclosure of the name of a rape victim, past crime information. Such information may cause harm to the individuals and might threaten their dignity, personal autonomy, and important values which are protected under the right to privacy guaranteed under international human rights laws. [1] The data collected by some private companies may be used for unlawful purposes or identity theft.

The “right to be forgotten” is the remedy which allows individuals in some circumstances to demand from search engines to delist certain information about them. This right came from the decision of the Court of Justice of European Union in the Google Spain case[2] of 2014. It was held that an individual has the right to request the search engine to delist search results obtained by a search of their names. This delisting was limited to the EU only at first. It further stated that any inadequate, irrelevant, or no longer relevant or excessive data can be removed by requesting the data controller. The right to data protection is established as a fundamental right under Article 8 of the European Convention on Human rights.[3]

This right can be utilized effectively, for example as an article involving medical malpractice by a renowned surgeon, whose legal inquiry turned out to be false, but the article fails to mention about the acquittal. The right to be forgotten could be useful by taking it down.

The right to be forgotten in the Indian Context:

Article 19(1) (a) of the Constitution ensures the freedom of speech and expression to Indian citizens, subject to certain restrictions under Article 19 (2). The freedom of speech stated under this article makes the right to be forgotten incompatible with the Constitution. The right to privacy was not provided in the constitution originally, after few Supreme Court judgments it was recognized as a fundamental right under Article 21 of the Constitution[4]

This right can be seen under section 228A of the Indian Penal Code and Section 23 of POCSO which applies to sexual offenses against women and children. It can also be seen under the Information Technology Act under section 43A which makes it mandatory for a Corporate body to execute reasonable practice to protect personal information. The High Court of Karnataka gave a judgment that upholds a woman’s right to be forgotten under a criminal complaint filed against her in a marital dispute.[5] This right comes in conflict with the freedom to seek information. Extremely sensitive information affects the personal life of an individual need’s protection from unnecessary dissemination. [6] 
The freedom of speech includes certain duties too, like the protection of the reputation of others[7]. The draft of the Personal Data Protection Bill, 2018 by Justice BN Srikrishna Committee, has introduced this right and referred to it as the ability of an individual to limit, delink, delete or correct the disclosure of the personal information on the internet that is misleading, embarrassing or irrelevant. [8]

A problem in which the deletion of information from a search engine or any source would lead to permanent removal or not as it goes beyond the control of the data controller similar to the case of social media. The right should be recognized for the protection of individual reputation from unnecessary harassment with justifiable grounds of its scope. This can be understood by an example, a rape victim has a right for her past to be forgotten and the criminal can’t claim that his conviction should not be referred by the media. The data protection authority will have to decide where the information is to be erased or retained from the web, this will hamper the freedom to criticize the public personalities for their public policies.

It shouldn’t compromise the freedom of speech and it is a fundamental right under the Constitution opposed to this right which is yet to set under the Indian Legal System. [9] There must be a balance drawn between the right to privacy and protection of personal data and freedom of information on the internet on the other hand. The conflict between the two fundamental rights must be reduced keeping the golden trinity of Art, 14,19, and 21 of the Constitution into consideration.

Conclusion:

The right to be forgotten requires to be used while balancing of right to privacy and the right to freedom of expression. This right would suffer many constitutional inconsistencies which makes the grounding incompatible in the Indian setting as under Article 19 of the Constitution the right to expression of the citizens and allows the individual to seek information and post content about another person excluding the restrictions under Article 19 (2). Therefore, the concept of this right makes it difficult to be protected under the Constitution as it would infringe the right of freedom of expression. The recognition of this right should have a certain degree of harmonized existence with other legal rights including the freedom of speech not being compromised. 

References

[1] The right to be forgotten: Remembering freedom of expression (2016), https://www.article19.org/data/files/The_right_to_be_forgotten_A5_EHH_HYPERLINKS.pdf 

[2] Case C131/12, Google Spain SL Google Inc. v. Agencia Española de Protección de Datos (AEPD) (E.C.J. May 3, 2014), http://curia.europa.eu/juris/document/document.jsf?docid=152065&mode=lst&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=281275 [herein after google Spain].
[3] Sanna Kulevska, Humanizing the Digital Age: A Right to Be Forgotten Online? A EUUS Comparative Study of privacy in Light of the General Data Protection Regulation and Google Spain v. AEPD, (2014), http://lup.lub.lu.se/record/4449685 at 18. 

[4] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. 
[5] Sri Vasunathan v. The Registrar General, 2017 SCC OnLine Kar 424; Amber Sinha, The Right to be Forgotten- A Tale of Two Judgements, THE CENTER FOR INTERNET & SOCIETY (April 07, 2017), https://cis-india.org/internet-governance/blog/right-to-be-forgotten-a-tale-of-two-judgments.
[6] Deepti Pandey, The right to be forgotten: A trial of controversy and conflict, (March 18, 2019), http://ijlt.in/index.php/2019/03/18/the-right-to-be-forgotten-a-trail-of-controversy-and-conflict/#_edn16
[7] Hannah Maslen, on the Right to be Forgotten, (March 16, 2014), at http://blog.practicalethics.ox.ac.uk/2014/05/on-the-right-to-be-forgotten/
[8] The right to be forgotten (Oct 24th, 2019), at https://www.drishtiias.com/daily-updates/daily-news-editorials/right-to-be-forgotten-2
[9] Nikhil Pahwa, Case Filed in Delhi High Court to Determine the Right to be Forgotten in India, (May 05, 2016) MEDIANAMA, https://www.medianama.com/2016/05/223-right-to-be-forgotten/

Author: Yukta Kamra, student of UPES, Dehradun. 

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