Thursday, February 2, 2023

Missing Memories: The right to be forgotten and its pitfalls

Google India has told the Delhi High Court that the Right has various nuances and passing protective orders would depend on the facts and circumstances of each case

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On July 21, 2022, while hearing a batch of petitions filed in the Delhi High Court seeking protective orders in the light of the “Right to be Forgotten” application, Google India said that it differed in different cases. The Right to be Forgotten allows people to request URL delisting on Google, but only for certain countries.

Google India submitted before a bench of Justice Yashwant Varma that this right has various shapes and shades and therefore passing of protective orders would depend on the facts and circumstances of each case. The counsel for Google argued that one blanket order cannot determine the width of the Right to be Forgotten.

While stating that the Delhi High Court had recognised the Right to be Forgotten, the counsel said that the first ex-parte order passed in this matter was being used repeatedly as a precedent in different courts and causing a snowballing effect. He also said that the Court had set up committees to look into what had to be done and that the respondent had no problem with that. While considering the submission, the High Court directed that Google India was to be deleted and Google LLP was to be impleaded as a party. 

In Jorawar Singh Mundy vs Union of India & Ors, the Delhi High Court in April 2021 had reached the conclusion that the Right to be Forgotten is in tangent to the Right to Privacy. The matter related to an American citizen who had visited India in 2009. However, a case was filed against him under the Narcotics Drugs and Psychotropic Substances Act, 1985. A couple of years later, a trial court acquitted him in its verdict on April 30, 2011. In a ruling on January 29, 2013, a single judge of the Delhi High Court affirmed his acquittal on appeal by the State.  

“The question as to whether a Court order can be removed from online platforms is an issue which requires examination of both the Right to Privacy of the Petitioner on the one hand, and the Right to Information of the public and maintenance of transparency in judicial records on the other hand. The said legal issues would have to be adjudicated by this Court,” the bench of Justice Pratibha M Singh had observed. 

The Court based its decision on the Supreme Court’s order in K.S. Puttaswamy vs Union of India (2017), which recognised the Right to Privacy. It also relied on its own order in Zulfiqar Ahman Khan vs Quintillion Businessman Media Pvt. Ltd. & Ors (2021).

Further, the Orissa High Court had also recognised the Right to be Forgotten in Subhranshu Rout vs State of Odisha (2020). The Court had examined the aspects and applicability of the right in the capacity of the right to privacy, including the international law on the subject.

The Right to be Forgotten is the right to have private information about a person removed from internet searches and other directories under some circumstances. The Right to be Forgotten “reflects the claim of an individual to have certain data deleted so that third persons can no longer trace them”. It has been defined as the right to silence on past events in life that are no longer occurring. The right leads to allowing individuals to have information, videos or photographs about themselves deleted from certain internet records so that they cannot be found by search engines.

The issue arose 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”. Due to the vagueness of current rulings attempting to implement such a right, there has been controversy about the practicality of establishing a right to be forgotten (in respect to access of information) as an international human right. 

The Right to Privacy is well recognised by the Supreme Court in the Constitution Bench judgment in K.S. Puttaswamy vs Union of India (2017). In a landmark judgment on August 24, a nine-judge bench of the Supreme Court unanimously ruled that individual privacy is a fundamental right. The judgment was delivered on a PIL filed by former Karnataka High Court Judge KS Puttaswamy in 2012, challenging the Aadhaar scheme. Six separate, but concurrent, judgments were written by the bench on the issue.

In Zulfiqar Ahman Khan vs Quintillion Businessman Media Pvt. Ltd. & Ors, the Delhi High Court had examined this issue and while granting an interim order, it held that “…. recognizing the Plaintiff’s Right to privacy, of which the ‘Right to be forgotten’ and the ‘Right to be left alone’ are inherent aspects, it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, or any extracts/or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit. 10. The Plaintiff is permitted to communicate this order to any print or electronic platform including various search engines in order to ensure that the articles or any excerpts/ search results thereof are not republished in any manner whatsoever. The Plaintiff is permitted to approach the grievance officers of the electronic platforms and portals to ensure immediate compliance of this order”.

In January 2017, the Karnataka High Court upheld the Right to be Forgotten in a case involving a woman who originally went to Court in order to get a marriage certificate annulled, claiming to have never been married to the man on the certificate. After the two parties came to an agreement, the wo­man’s father wanted her name to be removed from search engines regarding criminal cases in the High Court. The Court approved the father’s request, stating that she had a right to be forgotten.  

Businesses that manage their clients’ online reputations have responded to the European Court ruling by exercising the Right to be Forgotten as a means to remove unfavourable information.

One technique used by reputation consulting firms is to submit multiple requests for each link, written with different angles in an attempt to get the links removed.  

Critics say that the right to be forgotten would restrict the right to freedom of speech. Some academics opined that only a limited form of the right to be forgotten would be reconcilable with US constitutional law—the right of an individual to delete data that he has personally submitted. In this limited form of the right, individuals cannot have material removed that has been uploaded by others, as demanding the removal could constitute censorship and a reduction in the freedom of expression in many countries

—By Shivam Sharma and India Legal Bureau

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