The Delhi High Court has sought response of the Centre and search engine Google on a plea by two businessmen seeking to remove certain articles, relating to a criminal case lodged against them, from various online platforms.

At present, there is no statute in the country which provides for the right to be forgotten or getting photos erased from a server permanently.

The two men said the criminal case dates back to 2002 and they have been discharged by the court in 2016. However, the articles are still available on the Internet due to which they face social stigma on the perception of being allegedly involved in smuggling and illegal activities, they submitted.

The plea said the petitioners have a ‘right to be forgotten’ or a ‘right to delink’ in the context of the facts and circumstances of the case and they have a right to ask the authorities to remove all the links related to him on the search index which are irrelevant and obsolete and jeopardise their prospective employment opportunities and make them suffer.

Personal Data Protection Bill

• The absence of a data protection legal framework in India has been a cause for deep concern. The need for legislation was underlined in 2017 with the landmark judgment in Justice K.S Puttaswamy vs Union of India that held the right to privacy to be a fundamental right. 

• Against this backdrop, the draft legislation on data protection submitted by a committee of experts chaired by Justice B.N. Srikrishna to the ministry of electronics and information technology after year-long public consultations. 

• The Personal Data Protection Bill, 2019 was tabled in Lok Sabha in December 2019. The Bill was referred to a Joint Parliamentary Committee soon after. The committee has held 66 meetings since its constitution in December 2019. 

• Section 20 of the Bill deals with the right to be forgotten.

Section 20(1) states that:

The data principal shall have the right to restrict or prevent the continuing

disclosure of his personal data by a data fiduciary where such disclosure—

(a) has served the purpose for which it was collected or is no longer necessary for the purpose.

(b) was made with the consent of the data principal under section 11 and such consent has since been withdrawn.

(c) was made contrary to the provisions of this Act or any other law for the time being in force.

• The ‘right to be forgotten’, requiring erasure of data when it is not needed or following revocation of consent by the subject, is recognised under the General Data Protection Regulation (GDPR), Europe’s digital privacy law.

• In November 2020, the Orissa High Court acknowledged the ‘right to be forgotten’ as yet another facet of Article 21 of the Indian Constitution relating to Right to Life and Personal Liberty.

• According to Article 21 of the Constitution, “no person shall be deprived of his life or personal liberty except according to procedure established by law.”

Debate on the right to be forgotten

• The right to be forgotten refers to the ability of individuals to limit, delink, delete, or correct the disclosure of personal information on the Internet that is misleading, irrelevant, embarrassing or anachronistic.

• The right to be forgotten is an idea that attempts to instil the limitations of memory into an otherwise limitless digital sphere. A limited memory and the consequent need to both remember and forget are essential facets of the human condition. The Internet, with its currently vast reserves of data storage appears to facilitate timeless memory. 

• The right to be forgotten provides the right against the disclosure of a person’s data when the processing of personal data has become unlawful or unwanted, the committee of experts under the chairmanship of Justice B.N. Srikrishna noted.

• However, this right requires a careful balancing of the right to freedom of speech and expression with the right to privacy. It was argued that incorporating a right to be forgotten would have a detrimental impact on an individual’s ability to access information on the Internet. 

• Many experts were of the opinion that the Bill should not include the right to erase public information about an individual. Certain types of information, such as credit information, criminal history, court orders and so on, should not be permitted to be deleted as they are required in greater public interest, or in interest of law enforcement, or for the purpose of monitoring illegal or fraudulent activities, they said.

• Collective attempts at forgetting have often involved attempts at rewriting history.

• Removing publicly available information takes away from an individual’s right to know. At the same time, it abridges the freedom of the press which has published the story in the first place.

• Further, if every individual started exercising a right to be forgotten over various types of personal data, the nature of the public realm of information itself would be brought into question as such information may be permanently deleted. 

• Therefore, in order to address these free speech concerns, there may be a need to make a distinction between restrictions on disclosure (such as delinking in search results) and permanent erasure from storage.

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