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Right To Be Forgotten Do We Need It? – Free PDF Download

 

Question

  • Every individual must have a right decide the course of their life in an autonomous manner without being ‘stigmatised’ due to an action of the past. In light of the above statement, critically discuss the need to recognize “right to be forgotten” in India.

The News

  • Recently, recognising ‘right to be forgotten’ as part of ‘right to privacy’, the Supreme Court on 18 July ordered its registry to work out a mechanism to remove personal details of litigants entangled in matrimonial litigation.
  • A bench led by Justice Sanjay Kaul saw merit in the woman’s plea, which said her personal information, such as her husband’s name and residential address should either be deleted or masked from the judgment of her case that is now uploaded on the SC website, from where it has been shared by different online platforms. The woman’s name is already masked.

The Case

  • The couple from Karnataka married in 2006. The woman, in 2016 complaint to the police, claimed that the husband had contracted a sexually transmitted disease before their wedding but concealed it from her. She said she contracted the disease as well and claiming her consent was fraudulently acquired by her spouse who hid her disease accused him of rape.
  • Karnataka high court had stated that the law gave immunity to husbands on the offence of rape quashed the case. The woman then challenged the decision in Supreme Court, which rejected her petition.
  • She later filed a new petition asking all personally identifiable details about her and the case be concealed. She said it is impossible for her to protect her privacy and live with dignity with personal details about her marriage, history of a sexually transmitted disease and other such information readily available on the internet.
  • She said the information being out there was also causing mental trauma to her and to the couple’s child born in 2010, and said that keeping the husband’s name public too reveals her identity. Her plea for the right to be forgotten in SC was supported by her husband.

Right to be forgotten..!!

  • The ‘right to be forgotten’ is the right to have publicly available personal information removed from the internet, search, databases, websites or any other public platforms, once the personal information in question is no longer necessary, or relevant.

Right to be forgotten..!!

  • ‘Information in public domain is like toothpaste out of tube’
    • Revenge porn
    • Fake information
    • Fake case/#MeToo misuse
    • Defamation/Slandering etc

International Experience

  • Russia in 2015 enacted a law that allows users to force a search engine to remove links to personal information on grounds of irrelevancy, inaccuracy and violation of law.
  • European Union’s General Data Protection Regulation (GDPR)
    • EU in 2018 adopted GDPR whose Article 17 which provides for the right to erasure of certain categories of personal data
      • Considered no longer necessary
      • Whose consent has been withdrawn
      • Whose processing has been objected to
      • Personal data unlawfully processed
      • Data where there is a legal obligation for erasure
    • The right to be forgotten is also recognised to some extent in some states in USA, Spain, UK etc (Mainly through various judicial pronouncements).

Lets Talk about India

  • Right to Privacy
    • In Puttaswamy v. Union of India case, 2017, the Right to Privacy was declared a fundamental right by the Supreme Court.
    • Right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
  • Does Right to Privacy include Right to be forgotten?

Right to be forgotten

  • Lack of Legal Clarity in India
    • In Dharamraj Bhanushankar Dave v. State of Gujarat 2017 case, Gujarat HC rejected demand of removal of a judgment acquitting him in a kidnapping and murder case, passed by the same court. 
    • In “X” v Registrar general 2017 case, Karnataka HC recognised the right to be forgotten “in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.

Right to be forgotten

  • Lack of Legal Clarity in India
    • In Subhranshu Rout vs State Of Odisha 2020 case, the Orissa High Court examined the right to be forgotten as a remedy for victims of sexually explicit videos/pictures often posted on social media platforms by spurned lovers to intimidate and harass women.
    • In 2021, a Madras High Court Single Judge Bench headed by N. Anand Venkatesh ruled that the “right to be forgotten” cannot exist in the administration of justice, especially when it comes to court judgments.

Right to be forgotten

  • Lack of Legal Clarity in India
    • In 2021, Kerala High Court allowed deletion of such personal details from a Google search result.
    • Delhi High Court is currently hearing a clutch of petitions regarding the right to be forgotten.
      • Google India, speaking before the Delhi High Court, argued that a blanket order cannot determine the width of the right to be forgotten. The ‘right to be forgotten’ has various shapes and shades, that passing of protective orders would depend on the facts and circumstances of each case.

Right to be forgotten

Way Forward

  • Personal Data Protection Bill 2019 – A Solution?:
    • Seeks to establish a Data Protection Authority of India for the said purposes and the matters concerning the personal data of an individual.
  • Information Technology Act 2022 needed?
    • It is upto the Parliament and apex court ultimately to give thorough analysis over RTBF and develop a mechanism to balance conflicting rights of privacy and right to information & expression.

A point to note

  • As of now, the information that can be removed at the user’s request is content that the user has uploaded but there is no control over others data.
  • Search engines and major digital platforms can alter their policies and determine the eradication of personal data through de linking.
  • Big giants like Google have continued to retain certain information despite judicial pronouncements in other countries by finding legal loopholes

 

 

 

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