European Union: Will Judiciary Recognize The Emerging "Right To Be Forgotten"

Last Updated: 20 March 2017
Article by Vikrant Rana and Akshay Gupta

The internet has a continual memory that stores everything which was ever uploaded on it. The advanced technology and new search algorithms generates information in seconds that was ever uploaded and such information can be shared by Whatsapp, Email, Facebook, etc. by just clicking on the share button. Wherefore, to protect one's privacy a need has been felt that any information which is no longer relevant should be removed from the public domain. The Right to be Forgotten allows an individual to request for the removal of his/her personal information from an online database after a period of time or such information is no longer relevant. The issue of Right to be Forgotten revolves around the question that whether an individual should be granted a right to request for deletion of data generated from the list of results promoted by search engines, websites, social networks, blogs, etc.

EU Data Protection Law

The Right to be Forgotten is a remedy available under data protection law, enabling a data subject to obtain from the data controller the erasure of links to data which the data subject regards as prejudicial to him or her. It is a right which, in the European Union, derives from the 1995 Data Protection Directive. In the case of Google Spain and Google Inc. v. Agencia Española De Protección De Datos and Mario Costeja González the Court of Justice of the European Union on May 3, 2014 recognized the Right to be Forgotten and explained its scope. In 2010, a Spanish citizen Mario Costeja González lodged a complaint against a Spanish newspaper La Vanguardia Editions SL, Agencia Española De Protección De Datos and against Google Spain and Google Inc. His grievance was that an auction notice of his home which was repossessed later was still on Google's search results, infringing his right to privacy. He argued that, as the proceedings concerning him had been fully resolved for a number of years, the links available on Google regarding this were now totally irrelevant. Mario Costeja González requested the newspaper to remove the information or change the pages so that his personal information no longer appeared. He also requested Google Spain to remove his personal data, so that it no longer appeared in the Google search results.

The Court held that an internet search engine operator is responsible for processing data which appears on the web pages published by third parties. For example if a search made on a person's name, internet search engine operator will generate a list of results displaying links to web page which contains information on the person in question. If a person is aggrieved by such information then they may directly approach the operator and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results.

Right to Privacy in India

The Constitution of India does not expressly recognize the Right to Privacy. However, this Right to Privacy has been culled by the Supreme Court from Article 21. For the first time in India the Supreme Court in the case of Kharak Singh v. State of U.P.,1 held that Right to Life includes personal liberty and thus, right to privacy.

In the case of R. Rajagopal v. State of T.N.,2 the Supreme Court held that the right to privacy was implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It was a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. However, the Court held that the above rule was subject to an exception that a publication cannot be objected if such publication is based upon public records including Court records.

In India, the "Right to be Forgotten" has travelled on different paths. While the Kerala High Court and Karnataka High Court have ruled in favor of Right to be Forgotten, the Gujarat High Court has ruled against it.

Judgement of the Gujarat High Court in Dharamraj Bhanushankar Dave v. State of Gujarat & Ors.3

The Petitioner sought remedy under Article 226 of the Constitution of India against the publication of a judgment by Indian Kanoon and same was shown by Google in its search results, which was a 'non-reportable judgment'. The Petitioner claimed that such an act violated Article 21.

The Petitioner contended that Google and Indian Kanoon had no authority to publish a nonreportable judgment and it had adversely affected his personal and professional life. He also contended that because of such publication, the judgment was freely available on the internet and the same was against the classification made by the Court.

The Court observed that "The judgment in appeal is part of the proceedings and the said judgment is pronounced by this Court and therefore, merely publishing on the website would not amount to same being reported as the word "reportable" used for judgment is in relation to it being reported in law reporter."

In the Court's opinion, there was no legal basis to order such removal and the presence of the judgment on the Internet did not violate the petitioner's rights under Article 21.

Judgement of the Karnataka High Court in Sri Vasunathan v The Registrar General4

The Petitioner was father who had moved a Writ Petition before the Court seeking orders to block his daughter's name in an earlier order passed by the Court, as his daughter feared the consequences of her name associated with this earlier matter and if a name –wise search was carried on by any person through any of the internet service provider such as Google and Yahoo, this order may reflect in the results of such a search. The Petitioners daughter was afraid that this would affect her relationship with her husband and her reputation and good-will in society.

The Court Observed that "This would be in line with the trend in western countries of 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."

The Court directed its registry that it should endeavour to ensure that any internet search made in the public domain ought not to reflect the petitioner's daughter's name in the case-title of the order or in the body of the order in the criminal petition.

Judgement of the Kerala High Court in the Civil Writ Petition No. 9478 of 2016

The Kerala High Court in its order dated February 23, 2017 has also ruled in favor of the Right to be Forgotten. In the present case, a writ petition was filed before the Kerala High Court by the petitioner for protection of their Right to Privacy under Article 21 of the Constitution. The petitioner was seeking directions from the Court to ensure that their identity would remain protected and the materials disclosing their identity on IndianKanoon, Yahoo and Google would be removed or hidden appropriately. Due to the seriousness of the issue and failure of IndianKanoon to appear before the Court despite being served with a notice, the Court issued an interim order in favor of the petitioner directing IndianKanoon to remove the name of the petitioner from orders posted on its website until further orders were issued.

Petition before the Delhi High Court

A similar petition is pending before the Delhi High Court in respect of the same matter in the case of Laksh Vir Singh Yadav v Union of India and Ors.5. In this case the Petitioner has requested for the removal of a judgment involving his mother and wife from an online case database. The Petitioner in his plea contended that anyone who searches his name on Google will find the aforesaid judgment (of the criminal case) on the second number of search result and consequently giving the impression to everyone that he was involved in some sort of criminal proceeding in India.6

The next date of hearing is April 24, 2017. It will be interesting to see whether right to privacy of an individual will be protected against the right of public to access information. This judgement by the Delhi High Court will unfold a lot of questions in regard to the new evolving principle of Right to be Forgotten.

Takeaway

To sum up, there is no provision with regard to the Right to be Forgotten in India. The Karnataka High Court, Kerala High Court and Gujarat High Court delivered judgments on separate pleas to have particular judgments removed from online portal and search engine results. The Gujarat High Court dismissed the petition, stating that there was no legal basis to seek removal of a judgment from the Internet, while on the other hand the Karnataka High Court ordered the registry to ensure that any internet search made in the public domain ought not to reflect the petitioner's daughter's name and the Kerala High Court ordered the removal of the Petitioner's name from the one of the Respondents' website. After these contradictory judgements, it will be interesting to see how the right to be forgotten will be molded by the Delhi High Court. It is pertinent to note that the current petitions before the Court are restricted to cases reported on online databases. It will be interesting to see how the emerging concept will continue to develop in the future.

Footnotes

1. (1964) 1 SCR 332

2. (1994) 6 SCC 632

3. SCA No. 1854 of 2015

4. W.P. No. 62038/2016

5. (WP(C)1021/2016)

6. http://indiatoday.intoday.in/technology/story/does-right-to-privacy-include-right-to-be-forgotten-delhi-hc-asks-google/1/656798.html

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