Right to be forgotten | Right to Privacy in India

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Context:

The Supreme Court agreed to hear a case related to “right to be forgotten”.

Details

A three-judge Bench headed by Chief Justice of India (CJI) will hear a challenge against a Madras High Court ruling that on February 27 directed legal search portal Indian Kanoon to take down a judgment in a 2014 rape and cheating case.
The acquitted man had moved the Madras HC in 2021, saying that he had been denied the citizenship of Australia because his name appears in the judgement that is publicly available on the legal portal.

“Jorawer Singh Mundy vs Union of India” case (2021)

●In this case an American citizen approached the Delhi High Court seeking the removal of all publicly available records of a case registered against him under the Narcotics Drugs and Psychotropic Substances Act, 1985.

●He claimed that even though the trial court had cleared him back in 2011, a quick Google search disclosed the court's ruling in his case, which prevented him from finding employment in the USA.

●Despite having a strong academic background, he said that this hurt his career opportunities. Thus, the court directed respondents like ‘Indian Kanoon’ to remove the same.

Matter before the court

The top court now has to decide whether the right to be forgotten is a fundamental right and, if so, how it relates to other fundamental rights guaranteed by the Constitution of India

What is the right to be forgotten?

It can be loosely described as the right to remove one’s digital footprint (from Internet searches, etc.) where it violates the right to privacy.
It would mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/ information is no longer necessary, relevant, or is incorrect and serves no legitimate interest

Origin of right to be forgotten

In May 2014, in what is commonly referred to as the “Google Spain case”, the Luxembourg-based Court of Justice of the European Union (CJEU) ruled on the plea of Spanish lawyer Mario Costeja González to have Google remove information from 1998 regarding the forced sale of his property due to social security debt.
The court affirmed that there exists a right to be forgotten.
Citing Articles 7 (respect for private and family life) and 8 (protection of personal data) of the EU Charter on Fundamental Rights, the CJEU ruled that search engines must cater to individual requests to remove data that “appear to be inadequate, irrelevant or no longer relevant or excessive in the light of the time that had elapsed”.

Right to be forgotten in EU

It is known in European information privacy regulation as the “right to erasure”.
Informational self-determination — an individual’s right to control and limit her personal information — is now widely recognised in EU law.
Article 17 of the EU’s General Data Protection Regulation (GDPR) describes the right to erasure.

The Court of Justice of the European Union (CJEU)

●It is the highest court in matters concerning the application and interpretation of EU law.

●Role: Ensuring EU law is interpreted and applied the same in every EU country; ensuring countries and EU institutions abide by EU law.

●Members:

Court of Justice: 1 judge from each EU country, plus 11 advocates general
General Court: 2 judges from each EU country

●Established in: 1952

●Headquarter: Luxembourg

Composition

The CJEU is divided into 2 courts:

●Court of Justice – deals with requests for preliminary rulings from national courts, certain actions for annulment and appeals.

●General Court – rules on actions for annulment brought by individuals, companies and, in some cases, EU governments. In practice, this means that this court deals mainly with competition law, State aid, trade, agriculture, trade marks.

How is the right interpreted in India?

In India, there is no statutory framework that prescribes the right to be forgotten.
In 2017 judgement in Justice K S Puttaswamy v Union of India — the apex court explicitly recognised the right to privacy as a fundamental right, placing it as a facet of the right to life, right to equality, and the right to freedom of speech and expression.
Justice S K Kaul while concurring with the judgement mentioned about the right to be forgotten.

Advantages and Disadvantages of “Right to be Forgotten”

The right to be forgotten has advantages for persons seeking to remove past information from the Internet but does raise equally as many concerns about the practicality of its implementation.

Advantages	Disadvantages
●It can help prevent the spread of sensitive or damaging information about people.	●One’s need for privacy may be overridden by the public’s overall interest in viewing and accessing information
●It can also help people remove information that is inaccurate, outdated, or no longer relevant, which can help avoid ongoing harm or negative consequences.	●It is a very broad right without any precedent.
●It can help prevent people's personal information from being used for malicious purposes, such as identity theft.	●Google and other search engines may be backed up with requests to remove information, so it may not be removed immediately.
●It will help people control their personal information and ensure that it is accurate and up-to-date, which can support freedom of expression.	●Lack of transparency surrounding important information about businesses or persons

Mains challenges associated with Right to be forgotten:

Issues of Privacy :

A Person may want to de-link information about his criminal records which make it difficult for people to access certain reports when they search them.
The person’s right to be left alone, interpreted from Article 21, comes in conflict with the rights of the media to report on issues.

Article 19(1)(a) of the Indian Constitution, which gives freedom of speech and expression includes within its ambit, freedom of press.

Enforceability Against Private Individuals:

The right is normally to be claimed against a private party raising the question of whether fundamental rights can be enforced against the private individual, which is generally enforceable against the state.

Protection against a private act of a private party

Only Article 15(2), Article 17 and Article 23 provides protection against a private act of a private party that is challenged based on its violation of the Constitution.

Article 15(2) of the Indian Constitution states that no citizen can be subject to any disability, liability, restriction, or condition based on their religion, race, caste, sex, or place of birth. This applies to access to:

●Shops

●Public restaurants

●Hotels

●Places of public entertainment

●Wells

●Tanks

●Bathing ghats

●Roads

●Places of public resort that are maintained by state funds or are open to the public

Article 17 of the Indian Constitution abolishes the practice of untouchability and makes it an offence punishable by law.

Article 23 of the Constitution of India prohibits forced labour and trafficking in human beings. The article's objectives include:

●Upholding the principles of justice, equality, and respect for human rights

●Eradicating practices that exploit and subjugate individuals

●Recognizing the inherent rights and dignity of individuals.

Protection against a private act of a private party

Only Article 15(2), Article 17 and Article 23 provides protection against a private act of a private party that is challenged based on its violation of the Constitution.

●Shops

●Public restaurants

●Hotels

●Places of public entertainment

●Wells

●Tanks

●Bathing ghats

●Roads

●Places of public resort that are maintained by state funds or are open to the public

Article 17 of the Indian Constitution abolishes the practice of untouchability and makes it an offence punishable by law.

Article 23 of the Constitution of India prohibits forced labour and trafficking in human beings. The article's objectives include:

●Upholding the principles of justice, equality, and respect for human rights

●Eradicating practices that exploit and subjugate individuals

●Recognizing the inherent rights and dignity of individuals.

Conclusion

In this digital age, data is a valuable resource that should not be left unregulated. In this context, the time is ripe for India to have a robust data protection regime.The government should expedite the enactment of the Personal Data Protection Bill 2019.

Important articles for reference :

Sources:

https: //indianexpress.com/article/explained/explained-law/european-information-privacy-regulation-supreme-court-fundamental-rights-constitution-of-india-cji-d-y-chandrachud-9481662/

PRACTICE QUESTION

Q.Consider the following articles of the constitution of India:

Right to access to shops, public restaurants, hotels and places of public entertainment for all under article 15(2).
Abolition of untouchability under article 17.
Right to to life under article 21

How many of the above fundamental rights are available against both public and private parties ?

(a) Only one

(b) Only two

(d) All four

Ans: B

Explanation

●Only Article 15(2), Article 17 and Article 23 provides protection against a private act of a private party that is challenged based on its violation of the Constitution.

●Shops

●Public restaurants

●Hotels

●Places of public entertainment

●Wells

●Tanks

●Bathing ghats

●Roads

●Places of public resort that are maintained by state funds or are open to the public

Article 17 of the Indian Constitution abolishes the practice of untouchability and makes it an offence punishable by law.

Article 23 of the Constitution of India prohibits forced labour and trafficking in human beings. The article's objectives include:

● Upholding the principles of justice, equality, and respect for human rights

●Eradicating practices that exploit and subjugate individuals

●Recognizing the inherent rights and dignity of individuals.