.png)
INTRODUCTION
Humans, as autonomous beings, inherently desire control and confidentiality over various facets of their lives. In an era where personal data is ubiquitously present on the internet and public platforms, safeguarding this information has become paramount. In response, numerous countries have enacted data protection laws, with the introduction of the European Union's General Data Protection Regulation (GDPR) bringing this issue to global prominence.
In India, the discourse on data protection and privacy gained significant attention in the landmark case of Justice K.S. Puttaswamy v. Union of India[1]. In this ruling, the Supreme Court recognized the right to privacy as a fundamental right, underscoring the necessity for comprehensive legislation on data protection and privacy, as advocated by Standing and Parliamentary Committees in their reports.
Notably, the Indian Constitution does not explicitly mention the right to privacy. This right first gained recognition as a fundamental right in the seminal 1964 case of Kharak Singh v. State of Uttar Pradesh[2]. Here, the Supreme Court identified an implicit right to privacy within Article 21, asserting it as an integral part of the right to life. Consequently, the Court invalidated the regulation permitting domiciliary visits while upholding other surveillance provisions under the same regulation.
What is the Right to be forgotten and the Right to be left alone?
The Right to be Forgotten pertains to the entitlement to request the removal of publicly accessible personal information from the internet, search engines, databases, websites, or other public platforms when such information is no longer necessary or relevant. Whereas, The Right to be Left Alone does not signify a withdrawal from society. Rather, it implies an expectation that society will refrain from interfering in an individual's choices as long as those choices do not inflict harm upon others.
The Right to be Forgotten, also referred to as the right to be left alone stems from the broader Right to Privacy. This right permits individuals to seek the deletion of their data from public platforms if they wish. A notable precedent for this right was set in the case of Google v. Agencia Española de Protección de Datos[3], involving Costeja González. Here, the European Court of Justice ruled that European Union citizens could request the removal of their data from commercial search engines when the information was no longer relevant. The court emphasized the importance of privacy over the commercial interests of search engines. However, it is crucial to understand that the Right to be Forgotten is not an absolute right and may not be applicable when the dissemination of information upholds freedom of speech or other legal requirements.
In India, the Supreme Court recognized the Right to Privacy as a fundamental right in the case of K.S. Puttaswamy v. Union of India[4]. The Court observed that an individual's right to control their data and manage their online presence is integral to their privacy. This acknowledgement provides a foundation for recognizing the Right to be Forgotten, affirming that individuals are entitled to privacy and have the authority to determine the information available about them in the public domain.
This developing Right has its own boon and bane for the Indian population where one advantages out of the Right and one is disadvantaged.
Disadvantages of the Right to be Forgotten in the Context of Media and Journalism
Impact on Press Freedom: The media and journalism, often referred to as the fourth pillar of democracy, thrive on the free and independent flow of information. Introducing the Right to be Forgotten could curtail journalists' ability to report on historical records and past activities of individuals. This process would involve awaiting approvals from adjudicating officers as stipulated by the Personal Data Protection Bill, thus delaying timely news reporting.
Restrictions on Information Dissemination: Journalists could face significant hurdles in sharing information and ideas via media channels. The enforcement of the Right to be Forgotten might restrict their ability to inform the public effectively, as they would need to remove or withhold certain data.
Conflict with Freedom of Speech: Article 19 of the Indian Constitution ensures the fundamental right to freedom of speech and expression. Legalizing the Right to be Forgotten would require some websites and content creators to delete specific information from their platforms, thereby infringing upon this right.
Impact on the Right to Information: Implementing the Right to be Forgotten could negatively impact individuals' Right to Information. This could inadvertently give the state more power to withhold information, thus undermining transparency and the public's access to important information.
Challenges to Public Record Integrity: Mandating the removal of certain information from public records could compromise their authenticity and completeness. This could affect the historical and informational accuracy available to the public and researchers.
In conclusion, while the Right to be Forgotten seeks to protect individual privacy, its implementation could present significant challenges to press freedom, freedom of speech, and the public's right to information. Balancing these competing rights is essential.
Advantages of the Right to be Forgotten and the Right to be Left Alone
Control Over Personal Information: In today's digital world, individuals should have the authority to manage their personal information and identity. Information and communication technologies enable both government and private entities to extensively invade personal privacy by monitoring online activities. At the same time, people are often encouraged to share substantial personal information on social media. It is the duty of governments and lawmakers to protect the right to data privacy and ensure that individuals can control their identity and personal integrity. The Right to be Forgotten empowers individuals to regain control over their digital presence.
Protection Against Unlawful Public Access: There is no inherent right for the public to access private information that has been unlawfully disclosed. Much of the personal data in the public domain has been shared without consent, such as intimate photos posted online. There is no justification for public access to such information, and the Right to be Forgotten can help correct these privacy violations.
Mental Health Considerations: Outdated or irrelevant articles published about individuals can cause significant psychological harm. These publications, which may no longer be pertinent, often result in mental distress. The Right to be Forgotten offers a way to alleviate this burden by allowing individuals to remove such content from the public domain, thereby supporting their mental well-being.
In summary, the Right to be Forgotten and the Right to be Left Alone provide several significant benefits, including enhanced control over personal information, protection against the unlawful dissemination of private data, and the alleviation of mental distress caused by outdated or irrelevant public information.
Judgements of the Supreme Court on the Right to Privacy in the line of right to be forgotten
In R. Rajagopal v. State of Tamil Nadu [5], the Supreme Court established that the right to privacy includes the right to be left alone. The Court determined that the publication of any information concerning an individual without their consent—whether the content is accurate, positive, or negative—violates the individual's right to privacy. This violation subjects the publisher to potential legal action for damages.
This K.S. Puttaswamy stance in was reiterated by Justice Pratibha Singh in the recent case of Jorawer Singh Mundy v. Union of India [6]. The petitioner, an American citizen of Indian origin, was accused under the Narcotics Drugs and Psychotropic Substances Act, 1985, during a visit to India in 2009. Although acquitted in 2011 and with the acquittal upheld in 2013, the petitioner faced prejudice upon returning to the US due to the online availability of the judgment texts. After unsuccessful attempts to have the judgments removed from various websites, the petitioner sought the Court's intervention to protect his right to be forgotten.
In her judgment, Justice Singh reiterated the principles established in KS Puttuswamy in the absence of specific legislation. She also referred to the Delhi High Court's judgment in Zulfiqar Ahman Khan v. Quintillion Businessman Media Pvt. Ltd [7]., which acknowledged that an individual's personal and professional life could be harmed if appropriate relief against the publication or republication of data is not provided. The Court recognized the plaintiff's right to privacy, encompassing the right to be forgotten and the right to be left alone, and ordered the restraint of any republication of the impugned articles during the suit's pendency.
In the Mundy case [8], the Court noted that the petitioner’s ultimate acquittal necessitated protection from ongoing prejudice and suspicion, thereby justifying the right to be forgotten. Consequently, the respondents were directed to remove the judgments of acquittal, and Google was instructed to block the content from appearing in search results.
A similar approach was adopted by the Delhi High Court in the case of X v. YouTube Channel[9],where an actress sought protection against the republishing of her explicit videos. The Court granted her relief, reiterating the right to be forgotten.
CONCLUSION
The Right to be Forgotten is a concept that is gradually gaining recognition and significance in India. Although this fundamental right intersects with other fundamental rights, as previously discussed, it holds particular importance in today’s digital age. People do not always experience good times; mistakes are sometimes made, leading to blemishes in their character and reputation. Even when individuals are eventually acquitted of accusations, the societal stigma often lingers, making it difficult for them to regain their previous acceptance and standing. Therefore, it is crucial to establish the Right to be Forgotten. This right would allow individuals to have certain aspects of their past mistakes erased from public records and online platforms, thereby preventing future prejudices against them. By doing so, it would help safeguard their dignity and enable them to move forward without the shadow of their past affecting their lives. Ensuring this right would foster a more understanding and equitable society, where people are not perpetually judged by their past errors but are given a fair chance to rebuild their lives.
REFERENCES[1] KS Puttuswamy v Union of India, (2015) 8 SCC 735[2] Kharak Singh v. State of Uttar Pradesh ,AIR 1963 SC 1295[3] Google v AEPD and Mario Costeja Gonzalez,ECLI:EU:C:2014:317[4] supra note 1[5] R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632[6] Jorawar Singh Mundy v Union of India (2021) SCC OnLIne Del 2306[7] Zulfiqar Ahman Khan v Quintillion Businessman Media Pvt. Ltd, (2019) SCC OnLine Del 8494[8] supra note 6[9] X v. YouTube Channel, (2021) SCC OnLine Del 4193
~Authored by Namrata Ghosh and Soubhagya Khandual
Comments