By Lokendra Malik and Balram Pandey
“But each day brings its petty dust, our soon-chok’d souls to fill. And we forget because we must, and not because we will.”
These lines were written way back in 1852 by Matthew Arnold in his famous poem Absence. Forgetting is part of the human psyche. The declaration of privacy as a fundamental right by the nine-judge Constitution bench of the Supreme Court in the case of KS Puttuswamy vs Union of India was the onset of privacy jurisprudence in India which is still evolving. The Court at that time had said: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
The right to be forgotten is not a novel concept in Europe. In Switzerland, courts had repeatedly extended the right to be forgotten to those sentenced for criminal offences, as a part of what the Swiss call “rights of the personality” under the Swiss Civil Code. Over time, an offender’s interest in being forgotten and society’s interest in rehabilitation take precedence.
Recently, a submission of the central government in the Delhi High Court suggested that the legal notion of the right to be forgotten is evolving in India and it falls under the category of the right to privacy. A petition was filed by two international businessmen seeking an order of the right to be forgotten, as well as the removal of a judgment and a news article related to their arrest in a conspiracy and forgery case in 2002. This was met with a response from the Ministry of Electronics and Information Technology in the High Court, wherein it submitted that,
“It is for the platforms to consider the requests of the petitioner and remove such judgments or orders. The Ministry neither plays a significant role nor its presence is required in the matter. The petitioner seeks removal of court order-related information available online. This Hon’ble Court may directly issue directions if any to the concerned respondents other than Union.”
The centre, however, has also added that the Personal Data Protection Bill 2019 was introduced to address the need to protect citizens and their privacy and that the proposed legislation includes measures relating to the right to be forgotten. Chapter V, Clause 20 of the Draft Bill titled “Rights of Data Principal” mentions the “Right to be Forgotten.” It is provided that the “data principal (the person to whom the data is related) shall have the right to restrict or prevent the continuing disclosure of his personal data by a data fiduciary”. Under this provision, user(s) can de-link, limit, delete, or modify the publication of their personal information held by data fiduciaries under the Right to be forgotten in broad terms. A data fiduciary is any person, whether the state, a business, a juristic body, or an individual, who chooses the aim and manner of processing personal data alone or in collaboration with others.
Also Read: Right to be Forgotten: Delhi High Court says need to balance rights
Nonetheless, the sensitivity of the personal data and information cannot be established directly by the individual concerned; rather, the Data Protection Authority will monitor this (DPA). This implies that, while the proposed bill contains provisions allowing a data principal to request the deletion of his or her data, such requests are subject to authorisation by the DPA’s adjudicating officer. While evaluating the data principal’s request, this officer will need to consider the sensitivity of the personal data, the scope of disclosure, the degree of access requested to be restricted, the data principal’s role in public life, and the type of the disclosure. This bill has not seen the light of the day and it remains pending in Parliament.
The verdict of the Court of Justice of the European Union in Google Inc. vs González was a progression from earlier view on the right to be forgotten and its connection with the right to privacy. In 2011, González filed a complaint with the Spanish Data Protection Agency against La Vanguardia Ediciones, the publisher of a daily newspaper with a large circulation in Spain, alleging that a Google search for his name returned links to two pages of La Vanguardia’s newspaper from January and March 1998. Those 13-year-old papers related to a real estate auction to recoup González’s social security debts. He requested the agency for an order compelling the newspaper publisher to remove or amend the disputed pages, as well as an order compelling Google Spain or Google Inc. to delete or conceal personal data belonging to him from search results.
González also contended that the passage of time and the resolution of the disputed proceedings rendered the references to them utterly irrelevant. The Spanish Data Protection Agency dismissed the complaint against the newspaper, but upheld the complaint against Google. Google was instructed to remove the data from its index and to prevent future access to it. Google filed an appeal to have the ruling reversed. The Spanish court then referred a series of questions to the European Union’s Court of Justice. The Court of Justice held that Google “processed” personal data by enabling any Internet user to access a structured overview of the information on the Internet relating to that individual when searching on the basis of that individual’s name. Additionally, this information concerned areas of González’s private life that could not have been related or discovered without the search engine.
Also Read: Even with the court’s backing, a Right to be Forgotten law will be almost impossible to implement
The Court stated that search engines exacerbate the invasion of a person’s privacy by making the material “ubiquitous”. The potentially severe interferences with an individual’s rights were not justified only on the basis of the search engine operator’s “economic interest”. Most significantly, the Court found that even processing accurate data that is legal at the time may become incompatible with the law with time. This will be the case if the data are “inadequate, irrelevant, or excessive in regard to the processing purposes… not kept up to date, or… retained for longer than necessary” in light of the purposes for which they were gathered or processed. The most engrossing finding of the Court which has been followed closely is that privacy rights entrenched in the European Charter should generally take precedence over not just the economic interests of the search engine’s operator, but also, on occasion, the public interest.
Notably, some Indian courts have also applied this principle in their judgment(s). The High Court of Orissa in the case of Subhranshu Rout vs State of Odisha, provided an in-depth assessment of an individual’s right to be forgotten in any context. In the relevant case, the High Court was deciding a bail application, where the petitioner, who was indicted in the FIR, had released certain unpleasant photos of the complainant on Facebook against her permission. The Court expressed concern that, while the Act provides for criminal penalties for such offences, the rights of the victim, particularly her right to privacy, which is inextricably related to her right to have those offending images erased, have been left unanswered. The High Court relying on the dictum of the EU Court held that the petitioner’s right to privacy had been violated. The Court also emphasised the importance of enacting suitable legislation to give remedies in these instances and remarked that adjudicating on practical constraints and technological intricacies is problematic as a result of this void.
The High Court of Delhi again addressed the question of an individual’s right to privacy and right to be forgotten, as well as the general public’s right to transparency of judicial records, in Jorawer Singh Mundy vs Union of India. The petitioner contended that he is an American citizen of Indian ancestry who manages stocks and real estate portfolios, among other things. When he visited India in 2009, he was charged under the Narcotics Drugs and Psychotropic Substances Act. However, the trial court acquitted him of all allegations which was upheld by the Delhi High Court. When the petitioner returned to the United States, he encountered significant obstacles in his professional life as a result of the fact that the High Court’s appeal judgement was publicly available on Google for any prospective employer to view in order to conduct background checks prior to hiring him.
Justice Pratibha M. Singh, relying on the Orissa High Court’s decision in Subhranshu Rout vs State of Odisha, found that the petitioner was prima facie entitled to some interim protection. The Court also discussed the right to be forgotten in light of cases decided in the European Union. The right to be forgotten is incorporated into the General Data Protection Regulation (GDPR), which regulates the collection, processing and deletion of personal data. However, it is noteworthy that the direction issued to Indian Kanoon is not intended to completely bar access to the judgment. The verdict would still be searchable on Indian Kanoon’s website; however, it would be de-linked from search engines, effectively increasing the effort required to locate it.
By doing so, it ensures judicial transparency while also honouring the petitioner’s rights.
It is interesting to see that there is no precedent on the other side of the Atlantic where the right to be forgotten can be wielded as a sword, removing publicly accessible information from the Internet. However, the alluring, almost lyrical, concept of a right to be forgotten has periodically appeared in both US and Canadian law. In 1971, Reader’s Digest published an article about Briscoe, documenting his 11-year-old criminal conviction. The California Supreme Court determined that naming individuals in allegations of historical wrongdoing served no purpose: where “a man has reverted to that legitimate and unexciting existence” enjoyed by others, there is no longer a need to “satisfy the public’s curiosity”. However, in Gates vs Discovery Communications Inc., the California Supreme Court reversed Briscoe, finding it incompatible with its own recent rulings addressing the relationship between the right to privacy and the right to free expression and a free press. Briscoe’s early promise was snuffed out, and his revival appears exceedingly improbable.
Also Read: Delhi riots: Karkardooma Court disappointed on case pendency due to police apathy
In Canada, the right to be forgotten may well become part of common law, just like the Ontario Court of Appeal determined in Jones vs Tsige that a common law right of action exists for “intrusion upon seclusion”. Canadian law and legal reasoning sometimes resemble European rather than American patterns of thought. Indeed, the concept of the right to be forgotten existed in Canadian legal thought even before the European court’s judgement. This can be seen in various orders of the privacy commissioner of British Columbia where references to the right to be forgotten is made in support of his judgements.
The concept of privacy and the straightforward right to be forgotten trace back millennia: privacy has doctrinal foundations that date all the way back to the Old Testament. Friedrich Nietzsche famously contended that, “Without forgetting it is quite impossible to live at all”.
González’s name will always be associated with the right to be forgotten, a principle he helped to entrench in law. Google now returns over 40,000 results for his name. Perhaps, when he threw down the gauntlet, he certainly recognised and embraced the irony of his predicament. But more interesting is the fact that this has sparked a long-overdue conversation across the judicial spectrum, one that will undoubtedly continue as we settle remaining debates.
—Lokendra Malik is advocate Supreme Court of India and Balram Pandey is a law student from Symbiosis Law School Noida