Right to be forgotten

IN NEWS:

• The Delhi High Court is set to hear a doctor’s plea for enforcement of his ‘Right to be Forgotten’, which includes the removal of news articles and other incriminating content which he claims is causing detriment to his life and personal liberty.

RIGHT TO BE FORGOTTEN:

• The right to be forgotten or the right to be left alone is a right that emerges from the Right to Privacy.
• Also called the 'Right to erasure', it gives individuals the right to have their private information removed from the internet, websites or any other public platforms under special circumstances, like when the personal information is inaccurate, no longer necessary, or relevant.
• Article 17 of the GDPR provides for the right to erasure and lays down certain conditions when such a right can be restricted.

STATUS IN INDIA:

• India, at present does not have any statutory provision that provides for right to be forgotten.
• However, in the landmark case of K.S. Puttaswamy v. Union of India, the Supreme Court recognised the right to be forgotten as part of the right to life under Article 21.
• The Supreme Court had stated that the right to be forgotten was subject to certain restrictions, and that it could not be used if the material in question was required for the:
  • Exercise of the right to freedom of expression and information;
  • Fulfilment of legal responsibilities;
  • Execution of a duty in the public interest or public health;
  • Protection of information in the public interest;
  • For the purpose of scientific or historical study, or for statistical purposes; or
  • The establishment, executing, or defending of legal claims.
• Other legislations:
  • Section 43A of the Information Technology Act, 2000 says that organizations who possess sensitive personal data and fail to maintain appropriate security to safeguard such data, resulting in wrongful loss or wrongful gain to anyone, may be obligated to pay damages to the affected person.
  • The IT Rules, 2021 lays down procedure for filing complaints with the designated Grievance Officer so as to have content exposing personal information about a complainant removed from the internet.
  • There is an intricate system envisaged under the Section 20 of the Personal Data Protection bill for setting off the right to be forgotten.

IMPORTANCE OF RIGHT TO BE FORGOTTEN:

• Uphold individual’s privacy:
  • Information communication technologies allow the state, private entities and non-state actors to significantly interfere with an individual's privacy. Right to be forgotten can help ensure that individual’s privacy is respected.
• Regulate digital life:
  • Today, individuals are encouraged to share a considerable amount of information about themselves on social media. So, allowing individuals to have some ownership of their personal information gives them a degree of control over their digital identities.
• Protect vulnerable population:
  • Many individuals, especially women, continue to suffer due to content affecting the modesty and reputation or having no relevancy in the present times. Eg: Persons involved in highly sensitive cases. For them, right to be forgotten is essential to start a fresh life.
• Prevent misuse of data:
  • Most of the personal information in the public domain is there unlawfully, such as intimate photos distributed on the Internet without consent. There is no justification for other people to have access to such information.

ISSUES AND CHALLENGES:

• Increase censorship:
  • An overly expansive right to be forgotten could increase censorship because data subjects can force search engines or websites to erase personal data. This could affect the Right to freedom of speech and expressions and effective functioning of media and journalists.
  • Eg: By executing 'Right to be forgotten', there will be certain restriction upon the journalist to not disclose certain people's history sheet.
• Contradicts with Right to Information:
  • Right to be forgotten will indirectly affect this Right to Information and give an inexpedient right to the state to not disclose information.
• Ambiguity with restrictions:
  • Right to be forgotten is not an absolute right and can be restricted in certain conditions. However, terms like ‘public interest’ are broad and can be interpreted in different ways. This could be misused to oppose right to be forgotten. 
• Excessive power to private sector:
  • A lack of cogent regulatory safeguards can result in search engines becoming the “judge, jury, and executioner” of the right to be forgotten.
  • There are risks involved in conferring such a decision-making power on a private entity, particularly given the need to balance competing rights, an exercise traditionally reserved for courts.
• Presence of dark web:
  • Right to be forgotten can be useful in removing content from the surface web. However, this data may continue to persist in the dark web, thereby limiting the effectiveness of right to be forgotten.  
  • Read more on Dark net here: https://www.ilearncana.com/details/Dark-Net/42 

CONCLUSION:

While digital space is growing rapidly in India, right to be forgotten is still in its preliminary stage. However, a balance must be struck so that the State can protect the fundamental rights of the citizen, while not engaging in censorship. For the same, a robust data protection law should be implemented in the country at the earliest.

PRACTICE QUESTION:

Q. Do you agree that the right to be forgotten should be made an absolute right? Argue.