Right to be Forgotten – Explained, Pointwise

Introduction

The Delhi High Court ordered the removal of easy access from one of its own judgments. The move respected the petitioner’s right to be forgotten (RTBF) and aimed to prevent post-acquittal stigmatization. RTBF is a right to remove private information about a person from Internet searches and other directories under some circumstances.

It is not explicitly available to the Indian masses. However, it has been implicitly recognised by courts as part of the right to privacy under Article 21 of the Indian Constitution. However, some experts have expressed concerns about it. Because RTBF deters the right to information and media freedom under Article 19(1)(a) of the constitution. Therefore, cautious balancing is desired, to enable its implementation in a restricted sense. 

Why in the News?

• The Delhi High Court in Jorawar Singh Mundy v Union of India (2021) made an interim order protecting the rights of an American citizen.
  • The petitioner desired the removal of a judgment of acquittal in a case filed under the Narcotic Drugs and Psychotropic Substances Act (1985).
  • As per the petition, the continued existence of judgment on the websites/portals of Google and Indiankanoon had caused irreparable damage to his social life as well as his career prospects.
• An interim order was issued by the High Court of Delhi. It directed Google and IndianKanoon to remove access to a judgment from their portals.
• The court recognised that the petitioner has a right to be forgotten, which must be balanced with the right of the public to access the court’s records.
• This is the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.

About Right to be forgotten

• It is a right to remove private information about a person from Internet searches and other directories under some circumstances.
• It empowers individuals to ask organisations to delete their personal data.
• Likewise, it allows the individuals to determine the development of their life in an autonomous way without being perpetually stigmatized for a specific action performed in the past.

The scenario of Right to be forgotten in India

• The RTBF is not an explicit right granted to Indian citizens. Although courts in various judgments have emphasized the importance of this right.
  • In K.S Puttaswamy versus Union of India (2017), the court deduced that the right to privacy also encompasses an individual’s right to control his existence on the internet.
• The recommendations by the B.N Srikrishna committee also emphasized this right. Thus, it was incorporated under the Draft Personal Data Protection Bill, 2019.
  • Section 20 of the bill states that every person has the right to restrict or prevent continuing disclosure of personal data by any data fiduciary. Provided such disclosure meets any one of the following conditions:
    • The disclosure served the purpose for which it was made or is no longer necessary
    • Further, the disclosure was made with the prior consent of the individual, and such consent has since been withdrawn.
    • Lastly, the disclosure was made contrary to the provisions of the new bill or any other law in force.

International Scenario of Right to be forgotten

• The right took shape largely from the 1995 Directive of the European Union on the protection of individuals with regard to the processing of personal data.
• It is currently being provided by the EU’s General Data Protection Regulation (GDPR), a law passed by the 28-member bloc in 2018.
• According to the EU GDPR’s website, the right to be forgotten appears in Article 17 of the regulation.
  • It states that the data subject shall have the right to obtain the erasure of personal data concerning him or her, without undue delay, from the controller. Further, the controller shall have the obligation to erase personal data without undue delay.
• In 2019, the European Court of Justice ruled that the ‘right to be forgotten’ under European law would not apply beyond the borders of EU member states. 
  • This was in favour of Google, which was contesting a French regulatory authority’s order to have web addresses removed from its global database.
• Currently, the EU, UK, and Australia are strongly moving towards the consolidation of the Right to be forgotten.

Arguments in Favour of the right to be forgotten

• First, it will uphold an individual’s privacy under Article 21 of the Indian Constitution. This would enable him/her to fully enjoy the right to life and personal liberty.
• Second, it would prevent post-acquittal social stigmatization by society. The right may save an individual from additional punishments like social boycott, difficulty in getting jobs, doing marriage, etc.
  • The Delhi HC revoked access to its judgment in Jorawar Singh Mundy v Union of India (2021) based on this premise.
• Third, it would help in maintaining a veil of secrecy on the victim’s identity, especially in highly sensitive cases involving rape or affecting the modesty of the woman. This was observed by the Karnataka High court in Sri Vasunathan v The Registrar General (2017).
• Fourth, many articles are written based on half-truths and mere accusations. The media doesn’t update its prior articles based on future verdicts.
• Fifth, much information is published without an individual’s consent which may cause severe harm to its reputation and mental peace. 
  • For instance, uploading fake or revenge posts with respect to a person. 
  • Jasleen Kaur (a former Delhi University student) had in 2015 accused Saravjeet Singh of verbally harassing her at a traffic signal in West Delhi. 
  • This induced media persons to label him an “eve teaser” and a “pervert” however he was later acquitted.

Arguments against the right to be forgotten

• First, it gets in conflict with the right to information, which is part of freedom of speech under Article 19(1)(a) of the Indian constitution.
  • For instance, a rape victim has a right that her past is forgotten. While a criminal cannot claim that he has the right to insist that his conviction should not be referred to by the media.
• Second, under the proposed data protection bill, removal depends on the discretion of the adjudicating officer. This may lead to partisan or arbitrary removal in favour of the government.
• Third, it may impair the right of media personnel to do independent reporting. The adjudicatory officer may remove articles of media groups that generally criticize government policies.
  • Thus, the freedom to criticize the public personalities for their public policies based on their past statements and activities will be in jeopardy.  
• Fourth, the removal of complete judgments may restrict public scrutiny of judicial performance to ascertain the fairness and objectivity of the administration of justice. Further judgments are an important source of learning for law students.
• Fifth, the removal sometimes creates a Streisand effect. It is a social phenomenon that occurs when an attempt to hide, remove or censor information has the unintended consequence of further publicizing that information.

Suggestions

• Privacy needs to be added as a ground for reasonable restriction under Article 19 (2) through a constitutional amendment for the effective implementation of RTBP.
• The impending Data Protection Bill should be passed expeditiously. This would give individuals a legal right to erase their unnecessary and inappropriate personal data.
• The courts should resort to narrow tailoring of the judgment rather than forbidding access to its complete judgment.
  • For instance, in the current Jorawar Singh Mundy v Union of India (2021), the court could have ordered that the name and personal details of the petitioner be censored while maintaining public access to the judgment itself.

Conclusion

The right to be forgotten is well established across the world, although Indian courts have not had much occasion to deal with the same. However, this situation may change in the future as more petitions are likely to be filed on account of the evolving international jurisprudence and impending enactment of the Indian Personal Data Protection Bill.