RIGHT TO BE FORGOTTEN

In January, in a unique case, the Karnataka High Court approved, accepted and upheld the concept of the right to be forgotten. In the Indian context, this right is unheard of – it comes at a time when because of the internet, obtaining personal information is easy and swift, and there is an intense debate on the right to information versus the right to privacy.

The right to be forgotten is a concept discussed and put into practice in the European Union (EU) and Argentina since 2006. The issue has arisen from desires of individuals to “determine the development of their life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past.”

There has been controversy about the practicality of establishing a right to be forgotten to the status of an international human right in respect to access to information, due in part to the vagueness of current rulings attempting to implement such a right. There are concerns about its impact on the right to freedom of expression, its interaction with the right to privacy, and whether creating a right to be forgotten would decrease the quality of the Internet through censorship and a rewriting of history, and opposing concerns about problems such as revenge porn sites appearing in search engine listings for a person’s name, or references to petty crimes committed many years ago indefinitely remaining an unduly prominent part of a person’s Internet footprint.

Made popular by the European Court of Justice in 2014 in the Google Spain vs Mario Costeja Gonzalez case – 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.

In January, Justice Anand Byrareddy of the Karnataka High Court inaudibly announced a landmark judgement in which he ruled that a woman whose name highlighted in a criminal complaint order filed during a marital clash had the right to be forgotten.

Sri Vasunathan vs The Registrar GeneralWRIT PETITION No.62038 OF 2016 (GM-RES)

The “right to be forgotten” or “the right to be erased” allows an individual to request for removal of his/her personal information/data online. The origin of this right can be traced back to the French jurisprudence on the ‘right to oblivion’ or ‘droit à l’oubl’I’. The rationale behind it was to allow offenders who had served their sentence to object to the publication of information regarding their crime and conviction in order to ease their process of social integration.

The Karnataka High Court speaking through Justice Anand Bypareddy, while passing an order in a writ petition, directed its Registry to make sure that an internet search made in the public domain would not reflect the woman’s name in a previous criminal order passed by the same High Court. The High Court conclusively observed, “This is in line with the trend in Western countries of ‘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 woman’s father had approached the court seeking directions to mask the woman’s name in an earlier order passed by the High Court. The petitioner had stated that his daughter feared grave repercussions if her name was associated with her earlier case and it would affect her relationship with her husband and also her reputation in the society.

For now, there is no way to ascertain how the right to be forgotten would be implemented by the Indian context; presently, it is an emerging judicial notion that will take some amount of debate and deconstruction to make sense. Nevertheless, the Karnataka High Court judgment must be commended for what it is, judicious and progressive.

-LAWZ BUREAU

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