What is the Right to be forgotten?

Social Media Jun 08, 2021

In a recent order upholding the right to be forgotten, the Delhi High Court ordered the removal of one of its own verdicts from the search engine Google and the website Indian Kanoon while granting protection to an American citizen of Indian origin.

Background of the case

The petitioner had approached the Delhi High court in recognition of his Right to Privacy under Article 21 of the Constitution. He argued that despite his acquittal in the case of criminal charges levied against him in 2013, the online availability of the judgement was hampering his efforts in finding professional employment.

The court cited the 'irreparable prejudice' that may be caused to the petitioner's social life and directed the search engine to block accessibility to the judgement till the date of next hearing i.e. August 20,2021.

What is the Right to be Forgotten?

The ‘right to be forgotten’ (RBTF) pertains to the right of an individual to have publicly available personal information removed from the internet, search engines, websites when the information in question ceases to be relevant or is found to be misleading. It has been recognised as a  statutory right under the General Data Protection Regulation (GDPR) of the European Union.

The Orissa High Court, while upholding the right to be forgotten in a case, had stated that ‘Information in public domain is like toothpaste out of a tube’. This analogy was cited to safeguard the interests of victims of sexually explicit videos/ pictures posted on social media to harass women.

Legal framework in India

In India, though this right has not been explicitly stated as a law, the Personal Data Protection Bill,2019 (PDPB) recognises it under Section 20. Individuals have the right to restrict or prevent the continuing disclosure of their personal data when such disclosure-

  • has already served the purpose for which it was made
  • was made with the prior consent of the individual and such consent has since been withdrawn.
  • was made contrary to the provisions of the PDP bill or any other law in force.

However this provision is enforceable only on an order passed by the adjudicating officer appointed under the Bill.

Judicial precedents

Till date, the PDP bill has not become a law in India and the courts have followed international jurisprudence while recognising the RTBF in their judgements.In the year 2017, Gujarat High court had rejected the demand for removal of a judgement acquitting the petitioner. Soon after in another case, the Karnataka HC upheld the right “ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the reputation of the person concerned”. The opposite rulings in both these cases highlight the shades of grey in the right.

Challenges concerning the RTBF

As highlighted by the Supreme Court in its landmark judgement on the Right to privacy,there cannot be an absolute ‘Right to erasure’ due to its conflicting impact on several other rights under the Constitution, the first and foremost being the Right to freedom of expression and information. The need for public information on certain important matters and the transparency of judicial records are also incompatible with the right to be forgotten.The apex court has also stated non execution of this right where data is necessary for scientific and historical research purposes.

Where do we draw the line?

Though there is no blanket rule regarding the Right to be forgotten in India, the B.N. Srikrishna Committee recommendations provide some clarity in this regard.The extent of exercising this right in a way that it does not overlap with the existing rights granted by the Constitution is the key factor.

Also,in view of the protection of the modesty of women and fake charges of sexual harassment levied against men as was seen in the case of Metoo movement, there should be no debate regarding the inclusion of such sensitive data under this right.

Hence, the lawmakers would be required to take a holistic approach before granting the RTBF the status of a Statutory law.

This article has been written by Khanak Sharma for the Paradigm

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