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THE RIGHT TO BE FORGOTTEN: APPLICABILITY IN INDIA

Name of Author
ABSTRACT
According to statistics, India currently is the second largest Internet user in the world
and has a tremendous growth rate in the internet usage. At such a growing rate, problems like intrusion
in privacy, irrelevant and outdated data on internet which affects a persons reputation and dignity, are
becoming common. Thus, issues like the applicability of right to be forgotten in getting the desired data
about himself to be erased from the internet search are being raised globally. Europian Union (EU) has
already made data protection/privacy laws to secure these rights to the people. However, India has still
not come up with such a framework to ensure privacy rights to its internet users. In light of this, this
paper discusses the scope of Right to be forgotten in India by analyzing it using the concept right to
privacy under Article 21 of the Constitution of India and other relevant laws like the Information
Technology(Amendment ) Act,2008.

INTRODUCTION

Recently in 2014, the Court of Justice of the EU (the CJEU) has come with a
strict application of the Right to be Forgotten in Google Spain v AEPD and Mario Costeja
Gonzlez (Costeja case) which ensures data privacy rights of a person who wants some
irrelevant or no longer relevant data, or excessive data in relation to the purposes for which it
was processed to be erased from the search engine.1 For this case, the court applied the
provisions of the EU Data Protection Directive meant for the protection of an individuals online
data.2 Since Indian law does not directly talk about any right to be forgotten, it has to be
interpreted using various judicial orders concerning the importance of right to privacy under
Article 21 of the Indian Constitution and some relevant provisions of the Information
Technology Act(Amendment) Act, 2008 (the IT Act).

The arguments in challenge to this approach is that first, right to privacy is not a
fundamental right and second, it is against the freedom of speech and expression under Article
19(1)(a) of the Indian Constitution(the Constitution). In this paper, I have challenged the
validity of these arguments and shown that right to privacy is an inherent right of the
constitution which in this particular issue supersedes the right to free speech and expression.
Though the IT Act does not provide any such framework but right to privacy can be inferred

1
Google Spain v AEPD and Mario Costeja Gonzlez, ECLI:EU:C:2014:317
2
EU Data Protection Directive (Directive 95/46/EC)
from some of its provisions. This paper also points out that right to be forgotten is not an
unlimited right and is restricted by public interest.

IMPORTANT FEATURES OF RIGHT TO BE FORGOTTEN

The principle of right to be forgotten was long developed in the EU with a


perspective that a person may desire not to have his personal life presented to the world in just a
single click. It gives the freedom to live one's life in an autonomous manner, without being
stigmatized anymore for a specific action performed in the past which is no longer occuring and
thus, provides his easier social integration and rehabilitation.3

In the Costeja case, the Court ordered Google to remove links of the web pages so
that no undesired information about a person is shown in the search results.4 After this
judgement, the EU came up with the General Data Protection Regulation (GDPR)5 which
contains the right to erasure (or right to be forgotten) under Article 17. This was done to
strengthen the right to privacy present under Article 8 of the Charter of Fundamental Rights of
the European Union.6

STATUS OF RIGHT TO PRIVACY IN INDIA

Right to privacy in India is implied under the Right to life under Article 21 the
7
Constitution. It was first held in Gobind V. Madhya Pradesh that privacy is implicit in the
concept of liberty.8 Then in R. Rajagopal v. State of T.N. during 1994 where the Supreme Court
observed that though there is no mention of privacy rights in the constitution, it can certainly
implicit in the right of life and liberty under Article 21 of the constitution. It also held that a
citizen has a right to safeguard the privacy of his life, his family, education etc. and that no one
can publish anything without his consent, whether truthful or not if it is not against public order
or state interest.9

Apart from the constitutional provision, India is part of various International


Conventions that provide for the right of privacy. Article 17 of the International Covenant on
Civil and Political Rights, to which India is a party states that No one shall be subjected to

3
Harsimran Singh, India: Right To Be Forgotten Preview To This New Age Concept, March 14, 2017, available at
http://www.mondaq.com/india/x/576514/Data+Protection+Privacy/Right+To+Be+Forgotten+Preview+To+This+Ne
w+Age+Concept (Last visited on July 27, 2017).
4
Supra, note 1.
5
General Data Protection Regulation, EU Regulation 2016/679 (April 27, 2016).
6
Charter of Fundamental Rights of the European Union , 2012/C 326/02 (December 7, 2000).
7
The Constitution of India, 1950, Art 21.
8
Gobind V. Madhya Pradesh, 1975 SCR (3) 946, at 9.
9
R. Rajagopal v. State Of T.N, 1994 SCC (6) 632, 26
arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to
unlawful attacks on his honour and reputation.10 Article 12 of the Universal Declaration of
Human Rights also gives the same rights to the people.11 In the landmark judgments like Vishaka
& Ors vs State Of Rajasthan & Ors and NALSA v. Union of India it has been established that
Indias international obligations are to be imported into Indian law, either by way of legislation
or directly.12

HOW THE INFORMATION TECHNOLOGY LAW OF INDIA PROTECTS


PRIVACY OF CITIZENS

The IT Act includes a search engine as an intermediary under Section


13
2(1)(w). According to Rule 3(2)(b) of the Information Technology (Intermediaries guidelines)
Rules, 2011, intermediaries should observe due diligence while hosting, displaying, publishing,
updating sharing [] any information that is invasive of anothers property. 14 Right to be
forgotten will fall under this Section when interpreted broadly just like the CJEU interpreted
EU Data Protection Directive to incorporate the right to be forgotten in it. Also, Section 79(3)(b)
is an exception to the cases when the intermediaries will be exempted from liability. It says that
if an intermediary, upon receiving actual knowledge that any information controlled by it is
being used for an unlawful act, does not remove or disable it, then it will not get exempted from
the liability.15 Thus, if right to privacy is considered to be a lawful right, then interference with a
persons personal life will be called an unlawful act. In this way, the intermediaries like Google
will be liable to remove such data.

THE GRADUAL ACCEPTANCE OF RIGHT TO BE FORGOTTEN BY INDIAN


COURTS

Recently, Karnataka High Court in Sri Vasunathan v The Registrar General, a


woman wanted her name to be removed from a previous matter which had been settled. The
Court in this case observed that

10
International Covenant on Civil and Political Rights, December 16, 1966, United Nations, Treaty Series, vol. 999,
p. 171.
11
Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948).
12
Vishaka and others v.. State of Rajasthan and others. AIR 1997 SC 3011, at 4-6; National Legal Services
Authority v. Union of India, (2014) 5 SCC 438, 43.
13
The Information Technology(Amendment) Act, 2008, 2(1)(w).
14
Information Technology (Intermediaries guidelines) Rules, 2011, 3(2)(b).
15
Supra. Note 13, 79(3)(b).
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.16

Now, the concept should be widened and a right to be forgotten should also be
allowed to offenders of law who have already served their sentence or to the accused who has
been acquitted to safeguard their dignity when the act is no more occuring and protect them from
social ostracism. In this regard, the Delhi High Court in Laksh Vir Singh vs. Union of India17 has
recently issued a notice to the Centre and Google, demanding their stand on the right to be
forgotten emanating from a petition of a person demanding that he be delinked from
information regarding a criminal case involving his wife and his mother to which he was not a
party as it is causing prejudice to him.18 Also, in 2011, a Right to Privacy Bill was drafted in
India, which raised the online concerns of privacy.19 The bill has not been passed yet but this
shows that both the legislature and the judiciary are realizing the need of such a settled law.

CHALLENGES

The first challenge is to balance the right to be forgotten against the right to
freedom of speech and expression under Article 19(1)1(a) of the Constitution20 and against the
right to information21. Article 19(2) imposes restrictions on 19(1)(a). Right to privacy is one
such exception. Supreme Court in Peoples Union for Civil Liberties (PUCL) v. Union of India
said that the right to privacy under Article 21 can only be infringed when a compelling state
interest is satisfied and when it is not, the right to privacy will override the right to information.22
For the right of information, Section 8(1)(j) of the RTI Act give the power to the authorities to
refuse the disclosure of some data which invades the privacy of a person and which has no
relation with public interest.23 Thus, it can be concluded that right to be forgotten under the right
to privacy will prevail unless there is a violation of public interest. Public interest in not violated
after the person has already served punishment for his crime or after a long period of time when
the matter is no more relevant or when there is some untrue and misleading information about
him.

16
Sri Vasunathan v The Registrar General, W.P. No. 62038/2016, at 4.
17
Arunima Bhattacharya, In A First An Indian Court Upholds The Right To Be Forgotten, February 3, 2017,
available at http://www.livelaw.in/first-indian-court-upholds-right-forgotten-read-order/ (lat visiten on July 28,
2017)
18
Id.
19
The Right to Privacy Bill, 2011.
20
The Constitution of India, 1950, Art .19(1)(a).
21
The Right to Information Act, 2005.
22
Peoples Union for Civil Liberties (PUCL) v. Union of India, AIR 2003 SC 2363, at 61-61.
23
Right to Information Act, 2005.
After the Costeja case of EU, Google launched a form for the citizens of EU
where they can make requests to get some data delinked from the search results under their right
to erasure.24 It balances the privacy rights with the public's interest to know and the right to
distribute information. While evaluating, it look at whether the results include outdated
information about a person, as well as whether there's a public interest in the information. The
challenge is how these search engines will determine what is in public interest and what is not.

CONCLUSION

There are various impediments with respect to law and practicality of


enforcement of this right but it is possible to come up with a settled law. With the growing
technology and internet usage, it becomes easier to access any information and use it in any
manner without needing to obtain the consent of the data subject. In this situation, the right to
privacy is infringed which in turn should give the right to data subject to get any such link erased
from the search engine. The test for public interest can be implemented in two ways, first is to
follow the same pattern that Google did after the Costeja case or the Government can form a
group of people who will determine whether something is violative of public interest or not on a
case to case basis. With the growing awareness of rights, it is time that right to privacy is given
the required importance in this case.

24
EU Privacy Removal, Request removal of content indexed on Google Search based on data protection law in
Europe, available at https://www.google.com/webmasters/tools/legal-removal-
request?complaint_type=rtbf&visit_id=1-636369152316420343-2430032376&rd=1 (Last visited on July 28, 2017)