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Turning a Blind Eye; Critically Analysing Right to be Forgotten

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Mitakshara Kapoor
Right to be Forgotten

A right that results from the Right to Privacy is the Right to be Forgotten or the Right to be Left Alone. In essence, it says that anybody has the right to request that their data be erased from public databases. In the recent case of Google v. Agencia Espanola de Proteccion de Datos, Costeja Gonzalez, this privilege was established. The European Court of Justice decided in the case that EU residents have the right to request that their personal information be deleted from commercial search businesses if it is no longer necessary. The right to privacy was valued more highly than the search engine’s business model. It should be noted, nevertheless, that the right to be forgotten was not judged to be a limitless one and would not be considered if the publication of the information was done so by the First Amendment or other legal requirements.

In the case of KS Puttuswamy v. Union of India, the Supreme Court of India declared the Right to Privacy to be a fundamental freedom. According to the Court, “a person’s right to exercise control over his data and to be able to regulate his/her own life would equally entail his right to control his/her existence on the Internet.” As a person has a right to privacy and the ability to control what information is made public, this laid the groundwork for establishing the Right to be Forgotten.

What is the Right to be Forgotten?

Right to be Forgotten

When the personal data in question is no longer necessary or relevant, you have the right to request that it be removed from various publicly accessible sources, including search engines, libraries, blogs, and other public platforms.

The General Data Protection Regulation of the European Union recognizes this right as a statutory one and numerous EU and UK courts have supported it.

Who has the Right to be Forgotten?

The Personal Data Protection Bill, 2019 recognises the right to be forgotten, yet there is no similar law in place in India. Any entity has the right, under Section 20 of the Bill, to restrict or protect the protracted discovery of their private data;

  • have provided the aim under which it was obtained, or are no longer required for any such purpose; 
  • have been made with the permission of the person, which approval has now been withdrawn; or
  • were made in contravention of the PDP Bill or any other law in force. 

This clause limited the validity of this provision to orders issued by the adjudicating officer designated by the Bill. Before issuing such an order, the officer must consider several factors, including:

  • the sensitivity of the private information
  • the extent of the disclosure, and the extent of access and availability that was sought to be restricted or avoided, 
  • the individual’s role in society, 
  • the public’s importance of the private information
  • the essence of the release of information and the person’s activities.

Comparative Analysis

Many countries and jurisdictions around the world have responded differently to the idea of the Right to be Forgotten. The EU has seen the fastest developments overall. The terms of the United States Right to be Forgotten have also been addressed, along with those of the EU.

European Union

The European Union has been the scene of various attempts to codify the Right to be Forgotten. The European Union passed the Data Protection Directive in 1995 to control how individuals’ data was processed there. It is a crucial part of EU privacy and human rights legislation. The 1995 Data Protection Directive was replaced as a result of the adoption of the General Data Protection Regulation (GDPR) in April 2016.

According to Article 17, the data subject has the right to request the deletion of any personal data relating to them for a variety of reasons, including noncompliance with Article 6(1) (lawfulness), which includes a case (f) in which the data subject’s interests or fundamental rights and freedoms require the protection of personal data over the controller’s legitimate interests. The situations under which EU persons may exercise their right to be forgotten or their right to erasure are thus described in GDPR’s Article 17.

Under six circumstances, including the withdrawal of consent to use the data or if the data is no longer necessary for the purpose for which it was gathered, the article grants EU residents the right to have their data destroyed. However, in certain circumstances, such as when the request conflicts with the right to freedom of expression and information or where it is against the public interest in public health, scientific or historical research, or statistical purposes, the request may not be entertained. As a result, Article 17 of the GDPR of 2016 provides specific protection for the right to be forgotten.

It can be stated that under its functioning jurisdiction, it has at least established a confined right of erasing. The European Court of Justice ordered Google to remove “inadequate, irrelevant or no longer relevant” data from its search results upon request from a member of the public in the case Google Spain v. AEPD and Mario Costeja González. The decision, which is now commonly referred to as the “right to be forgotten,” was crucial in enforcing data protection rules and regulations in the EU, particularly the EU’s General Data Protection Regulation (GDPR).

A Spanish guy named Mario Costeja González was involved in the case, and he was upset that a newspaper item from 1998 appeared when he searched for his name on Google. Gonzalez asked the Newspaper to take down the item in 2009, but they refused, then Gonzalez went to Google to ask them to hide the piece from searches for his name. The plaintiff was awarded success by the court. One must fill out a form on the search engine’s website to request removal from the search engine and exercise their right to be forgotten.

The applicant must specify their nation of residency, provide personal details, a list of the URLs to be deleted along with a brief description of each one, and attach legal documentation. The form allows users to enter the name for which they want all search results to be excluded. EU citizens have the right to appeal to their local data protection body if a search engine rejects their request to delink content. By May 2015, the British Data Protection Agency had handled 184 of these complaints, and in around 25% of them, it had reversed Google’s decision.

Google might be sued if it challenges a Data Protection Agency decision. The European Union has made it a priority for Google to implement citizen requests for delinking on all international domains.

United States of America

The legal system in the United States of America is highly developed and guards the privacy of its residents. An act to alter the civil rights law and the civil practice law and rules, regarding developing the right to be Forgotten act, was first introduced by the State of New York in its State Assembly with the title A05323. Additionally, in March 2017, state senator Tony Avella and assemblyman David Weprin of New York proposed legislation that would allow users to request that search engines and online speakers remove content that is “inaccurate,” “irrelevant,” “inadequate,” or “excessive,” that is “no longer material to current public debate or discourse,” and that is harming the topic.

Most of the bill’s provisions were in line with the ruling in Google Spain SL v. Agencia Espaola de Proteccion de Datos by the European Court of Justice. To some extent, Melvin v. Reid and Sidis v. FR Publishing Corporation, two significant cases, are pertinent. In Melvin’s case, a former prostitute was accused of killing someone and later found not guilty; she then tried to reintegrate into society discretely and anonymously. Her biography was disclosed in the 1925 movie The Red Kimono, and she sued the director with victory.

Any person leading a moral life has the right to happiness, which includes the freedom from unwarranted attacks on his reputation, social status, or character, the court ruled. In the latter case, the petitioner, William James Sidis, was a former child prodigy who desired to live a quiet, unrecognized adult life. An article in The New Yorker, however, upset his plans. The court ruled that there are restrictions on the ability to manage one’s own life and facts about themselves, that publicly available information has social value, and that a person cannot choose to disregard their celebrity status.

Nevertheless, despite these sluggish developments, it is unlikely that the United States will enact federal legislation or a constitutional amendment guaranteeing a stand-alone right to be forgotten, especially given the strong opposition because it would violate the First Amendment of the US Constitution, which guarantees freedom of speech and expression. So, it is argued that the Right will lead to a new type of censorship.

These criticisms, however, are compatible with the idea that only content that users contribute can be requested to be removed.

The Indian Perspective

Right to be Forgotten

There have been instances where the Right to Be Forgotten has only partially been applied:

The Delhi High Court conducted an investigation into the matter in April 2016 after a Delhi banker submitted a request to withhold information about his marital conflict. He argued that since the conflict had been resolved, it didn’t need to be made public. Google and other web search tool companies have been asked to respond by September 19 or the High Court will continue its investigation.

In January 2017, the High Court of Karnataka upheld a woman’s RTFB after she filed a divorce petition. She asserted that the man whose name appeared on the endorsing certificate was not the husband she had married. Her father asked the court to delete her name from search results after the case was resolved since it was visible when people searched for criminal cases in the high court.

In a case that the Delhi Court took on in February 2017, a man requested that information about his mother and significant other be removed from search engine results. The man believed that the web search tool results linked to his identity showed a detour from potential future work opportunities.

Although there is currently no legal precedent for the right to be forgotten, if it were to be implemented, residents would no longer need to file a lawsuit to request that material from web indexes be erased. The right to be forgotten and web searches in India could both be significantly impacted by this case.

According to S.C., the right to be forgotten was a component of the final clause of the right to privacy in the Puttaswamy v. Union of India case. The right to privacy and, to a lesser extent, the right to dignity under Article 21 of the Indian Constitution are the sources of the right to be forgotten.

The European Union’s right to be forgotten is supposed to be greatly strengthened under the General Data Protection Regulation. The right to be forgotten is outlined in Article 17 of the GDPR, and it enables a person to ask for the immediate deletion of their data by a supervisory authority. The Personal Data Protection Act in India governs the right to be forgotten. 2019 (PDP Bill) (PDP Bill) In India, the right to be forgotten has not yet been formally recognized.

Nonetheless, the right to security was recognized as a basic right in K.S. Puttaswamy (Ret.) v. Union of India, 2018. In a significant ruling in 2017, the Supreme Court proclaimed the right to privacy to be a basic right. As stated in Article 21 and Part III of the Constitution of India, “the right to privacy is maintained as an intrinsic aspect of the right to life and personal liberty,” the court says.

The fundamental rights to life and personal liberty outlined in Article 21 of the Indian Constitution are crucial. No one “should be deprived of his life or personal liberty unless per a procedure provided by law.”

An individual’s position and reputation, as guaranteed by Article 21 of the Indian Constitution, may be threatened by a deeper mix of innovation and digitalization of information that can be found by a simple Google search. Today, several Supreme Courts specifically mention the right to be forgotten in their rulings, per applicable international law.

Important Case Law

Zulfiqar Ahman Khan v. M/S Quintillion Business Media Pvt. Ltd. and others, Zulfiqar Ahman Khan asked for the removal of stories that were written about him negatively on the news website The Quint. The Delhi High Court acknowledged the importance of the Right to be Forgotten in a person’s presence. Jorawer Singh Mundy v. Union of India and Ors., the High Court of Delhi ordered Google to remove the ruling acquitting a man in a narcotics case because it affected his line of employment.

Concluding the Discussion

India currently lacks explicit legislation that examines the need for the Right to be Forgotten. Yet, the legal precedence points to the adoption of the right. The Personal Data Protection Bill has also just been introduced by the government. The General Data Protection Regulation of the EU is encapsulated in the Bill, which aims to provide citizens with more control over their data.

There must be a system to make sure that the right does not become an absolute one, despite the progressive idea that is promoted by such declarations and legislation. It should be emphasized that a lot of information that is included in public records is available in the public domain. The authenticity of documents and the information associated with them may be compromised if all information is prohibited from dissipating. The freedom of speech and the right to information must coexist peacefully with the right to be forgotten. It would be wise to keep an eye on how the right interacts with other rights and laws, such as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Regulations, 2021, which provide a means for people to file complaints about information that is made public.

With the current trend, it is evident that India’s legal framework for the right to be forgotten is still evolving and may mark the beginning of a new era for issues relating to the right to privacy in an utterly public world.

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