Right to be Forgotten

In News

• The Delhi High Court has asked the Centre and search engine giant Google to respond to a petition by two businessmen, who have invoked the right to be forgotten.
• The Court sought the removal of certain articles relating to a criminal case lodged against them, from various online platforms.

Demands of Plea

• Petitioners claimed that they have the right to ask the authorities to remove all the links related to them on the search index, which is “irrelevant and obsolete and jeopardize petitioners’ Right to Privacy & affect their employment opportunities (Article 21).
• It also mentions that the posts and videos on the internet related to the petitioner have caused them psychological pain for his diminutive acts.
• In the plea, businessmen pointed to having the ‘right to be forgotten’ or a ‘right to delink’ in the context of the facts and circumstances of the case.

Right to be Forgotten in India

• It is the right to have personal information removed from publicly available sources, including the internet and search engines, databases, websites etc. once the personal information in question is no longer necessary, or relevant
• The Right to be Forgotten falls under the purview of an individual’s right to privacy, which is governed by the Personal Data Protection Bill that is yet to be passed by Parliament.
• In 2017, the Right to Privacy was declared a Fundamental Right by the Supreme Court in its landmark verdict.
  • At that time, the court held that 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.

Personal Data Protection Bill

• It was introduced in Lok Sabha on 11^th December 2019.
• Its aim is to set out provisions meant for the protection of the personal data of individuals.
• Clause 20 under Chapter V of this draft bill titled “Rights of Data Principal” mentions the “Right to be Forgotten.” 
  • It states 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.
  • It gives an individual the right to restrict or prevent the continuing disclosure of their personal data when such data 
    • Has served the purpose for which It was collected, or is no longer necessary for said purpose.
    • Was made with the consent of an individual, whose consent has since been withdrawn.
    • Was made contrary to the PDP Bill or any law in force.
  • While assessing the data principal’s request, this officer will need to examine the:
    • Sensitivity of personal data.
    • The scale of disclosure.
    • The degree of accessibility sought to be restricted.
    • Role of the data principal in public life.
    • Nature of the disclosure among some other variables.
• Therefore, broadly, under the Right to be Forgotten, users can de-link, limit, delete or correct the disclosure of their personal information held by data fiduciaries.
  • A data fiduciary means any person, including the State, a company, any juristic entity or any individual who alone or in conjunction with others determines the purpose and means of the processing of personal data.
• Even so, the sensitivity of the personal data and information cannot be determined independently by the person concerned but will be overseen by the Data Protection Authority (DPA). 
  • This means that while the draft bill gives some provisions under which a data principal can seek that his data be removed, his or her rights are subject to authorisation by the Adjudicating Officer who works for the DPA.
• In the meantime, the Information Technology Rules, 2011, which is the current regime governing digital data, does not have any provisions relating to the right to be forgotten.

Challenges

• Enforcement Challenge
  • There are many legal and technical challenges in the enforcement of the right to be forgotten. 
  • The success rate of governments across the world in banning or removing pornographic websites or torrent sites from the Internet has not been great, since there are various ways of circumventing such bans. 
  • Further, the blocking or delinking of URLs by search engines does not guarantee that such information has been blocked or deleted from the Internet. 
  • There is also no way to ensure that such information is not uploaded again.
• Right to Privacy v/s Information of Public Interest
  • Google has created a mechanism through which an individual can make a request for taking down or delinking a specific search result bearing an individual’s name. 
  • Google evaluates such requests on various parameters like whether these results are an infringement on his right to privacy or whether such information is of public interest. 
  • In the case of the former, the individual’s right to be forgotten trumps the public’s right to access information. 
  • However, if the information is of public interest, the right to information of the public prevails over privacy rights.
  • This squarely makes Google the decision-maker of the relevance, adequacy, and need for data to be available online for public access or not.
• Scrutinization of Requests
  • With the growing recognition of the right to be forgotten, the number of requests that search engines receive for taking down or delinking is only likely to increase, making it extremely difficult and cumbersome to scrutinize such requests manually. 
  • According to Google’s Transparency Report, as in 2016, Google had received 565,412 requests for the removal of URLs. The Report further states that it has already evaluated 1,717,714 URLs since May 2014. The report shows that Google has removed 56.8% of the URLs from the requests received. 
  • With a substantial increase in the number of requests, search engines may even consider using algorithms to deal with such requests instead of manually evaluating the privacy rights vis-à-vis public interest.
• Misuse of Right by Individuals
  • This right may be misused by individuals as it will lead to artificial alteration of the content available online which may result in the delinking of pertinent information.
• No Turning Back for Information in Public Domain
  • Information in the public domain is like toothpaste, once it is out of the tube one cannot get it back in and once the information is in the public domain it will never go away.

Way Forward

• The Right to be Forgotten needs to be established statutorily in Indian jurisprudence and must extend to cover private persons as well as the State, as proposed in the Personal Data Protection Bill, 2019. 
• The Right is necessary to enable individuals to have more and better control of their personal information online.
• The countries need to think in terms of designing the right constitutive rules of the logical space of online information. 

Source: TH