India: Right To Be Forgotten – Preview To This New Age Concept

Last Updated: 14 March 2017
Article by Harsimran Singh

Most Read Contributor in India, December 2018

"The right to silence on past events in life that are no longer occurring"

In simple words, as a concept, the right to be forgotten means allowing individuals to have their information, videos or photographs deleted from certain internet records so that they cannot be found by search engines. This concept has been in existence in the European Union (EU) and Argentina since 2006 and finds its genesis in the principle of determining the development of one's life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past. Under the right to be forgotten, an individual can make a request to search engines like Google, Yahoo and Bing to take down his/her personal details in certain circumstances to prevent access of confidential information by third parties.

There have been reports that owing to practical difficulties in implementation of such a right apart from vagueness in rulings by various courts, this concept has remained in controversy. It was in 2014, when the Court of Justice of the European Union recognized the right to be forgotten as a part of the fundamental right to privacy in the Google Spain v AEPD and Mario Costeja González case. In this case the plaintiff sought delinking of search results appearing on Google and the deletion of newspaper articles appearing online with respect to bankruptcy proceedings against him. The Court held that individuals have a right to request search engines to delink information which causes prejudice to them. However, the Court was careful to state that this right is not absolute and can be applied only when the data becomes 'inadequate, irrelevant, excessive, not kept up to date, or kept for longer than necessary' with respect to the purpose for which it was collected or processed. Accordingly, the Court directed Google to delink the search results in the instant case. It was further held that the publication of accurate data may be lawful at a given point in time, but in due course, it might become inconsistent with the law.

There are concerns about its impact on the right to freedom of expression, its interaction with the right to privacy, and whether creating a right to be forgotten would decrease the quality of the Internet through censorship and a rewriting of history, and opposing concerns about problems such as revenge porn sites appearing in search engine listings for a person's name, or references to petty crimes committed many years ago indefinitely remaining an unduly prominent part of a person's Internet footprint. The right to be forgotten is distinct from the right to privacy, due to the distinction that the right to privacy constitutes information that is not publicly known, whereas the right to be forgotten involves removing information that was publicly known at a certain time and not allowing third parties to access the information. Limitations of application in a jurisdiction include the inability to require removal of information held by companies outside the jurisdiction. There is no global framework to allow individuals control over their online image1.

Pursuant to Google case (supra), Google created a platform through which an individual can make a request for taking down of or delinking of a specific search result bearing an individual's name. Google evaluates such requests on predetermined criterions to decide (though arguable) whether such information should be taken down or not. As per Google's Transparency Report, Google2 had received 688,868 requests for the removal of URLs. The Report further states that it has already evaluated 1,905,513 URLs since ruling in Google case (supra).

This so called right does not have any legal recognition under various legislations; e.g. the nearest possible statute Information Technology (IT) Act, 2002 or the Rules made thereunder do not envisage this right / concept anywhere The right / concept came up before consideration in April 2016, where the Hon'ble Delhi High Court began to examine the issue after the petitioner prayed to have his personal details deleted from search engine results following a marital dispute. In this case, due to the dispute being settled, the petitioner's request was found to be valid and the Hon'ble High Court was pleased to direct Google and other search engine companies to file respective replies to the petition, upon which the court could continue to investigate the issue3.

Recently, Hon'ble High Court of Karnataka in Writ Petition No. 62038 of 2016 (GM-RES) titled Vasunathan Vs. The Registrar General, High Court of Karnataka and Ors. on 23.01.2017 decided petition involving this concept.

In this case, a father/petitioner filed the petition inter alia seeking directions of the Court to safeguard identity of his daughter who was a party to court cases including quashing of FIR, criminal complaints etc. arising out of matrimonial dispute. The Petitioner contended that the name of his daughter and identity details are indicated in the cause-title to the concerned petition and that it is the apprehension of the petitioner's daughter that if a name-wise search is carried on by any person through any of the internet service providers such as Google and Yahoo, this order may reflect in the results of such a search and therefore, it is the grave apprehension of the petitioner's daughter that if her name should be reflected in such a search by chance on the public domain, it would have repercussions even affecting the relationship with her husband and her reputation that she has in the society and therefore is before this court with a special request that the Registry be directed to mask her name in the cause-title of the order passed in the petition filed by her husband (accused in a disposed-off criminal petition). Further, if her name is reflected anywhere in the body of the order apart from the cause title, the Registry shall take steps to mask her name before releasing the order for the benefit of any such other service provider who may seek a copy of the orders of this court. However, it is made clear that insofar as the High Court website is concerned, there need not be any such steps taken. Therefore, if a certified copy of the order is applied for, the name of the petitioner's daughter would certainly be reflected in the copy of the order. It should be the endeavor of the Registry to ensure that any internet search made in the public domain, ought not to reflect the petitioner's daughter's name in the cause title of the order or in the body of the order of this court in the said concerned disposedoff criminal petition. The Court observed that this plea would be in line with the trend in the western countries where they follow this as a matter of rule "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. Accordingly the Court was pleased to dispose of the petition in favor of the petitioner/father.

It will not be incorrect to state that the concept / right is surely gaining popularity and acceptability through courts of law. Further road ahead ... time will only tell

Footnotes

1.https://en.wikipedia.org/wiki/Right_to_be_forgotten

2. As on 13.02.17- https://www.google.com/transparencyreport/removals/europeprivacy

3. (Laksh Vir Singh Yadav vs. Union of India, WP(C) 1021/2016) - No further details could be found in public domain

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