Examining Right to be Forgotten: A Comprehensive Review
With advanced technology, the reach of humans to anything is inevitable. Human beings are viewed as independent creatures with nature that necessitates to have control and confidentiality in certain aspects of their life including their personal data and public data as we live in an era where our information is on the web for open discussions. Nowadays the internet allows anyone to publish anything presenting us the biggest disadvantage of the web. What can be done if someone shares abusive remarks about someone else, or individual data or personal photographs or information is used without your knowledge or permission? Such reservations are significant in today’s world, and as such the School of Law at The NorthCap University, ensures to instigate discussions on such potent issues often.
Nations are approaching this with the introduction of different laws and regulations for information insurance; and after the European Association presented GDPR this issue came into the spotlight of the world.
In India, the case of Justice K.S. Puttaswamy v. Union of India highlights the importance of having regulations for data privacy and data protection, and with this, the supreme courts in India recently recognised the right to privacy of the citizens as a fundamental right which acts as a facet of Article 21 of the Constitution of India which enumerates the Right to Life and Personal Liberty. The Supreme Court observed that: the right of an individual to exercise control over his data and to be able to control his/her own life would also encompass his right to control his or her existence on the Internet.
Right To Be Forgotten
The right to be forgotten appears in Recitals 65 and 66 and Article 17 of the GDPR. It states, “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay”, if one of several conditions applies. The ability of people to restrict, erase or remove their personal information on the internet from public reach is ensured by the Right to be forgotten. The criteria for removing the data from the web are that the data should be misleading, embarrassing, irrelevant, humiliating, or anachronistic. in other words, the right to be forgotten provides the right against the revelation of her information while handling her own information has become unlawful or undesirable.
European Union under the General Data Protection Regulation has recognised the Right to be forgotten as a statutory legal right and has likewise been upheld by different EU and English courts. The Digital Personal Data Protection Act,2023 recognises the right to be forgotten in India. The curriculum of School of Law at The NorthCap University ensures inclusion of the latest legislations withing the syllabi.
Origin Of the Right To Be Forgotten
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 Court of Justice of the European Union recognised the right to be forgotten in 2014. Yet, that was neither the beginning nor the finish of the history of the right to be forgotten. It should be noted that the legal battle started well before the CJEU’s decision and continues to be present.
The idea of such a right can be traced long back to the French law which perceives ‘le Droit a l’oubli’ as generally converted into ‘the right of oblivion’.
The origin could be traced back to 2010 in Argentina when the case was presented by Artist Virginia da Cunha involved photos that had initially been taken and uploaded with her consent, but she claimed that her photos were inappropriately connected her photos with erotic entertainment. This case surely was successful in web indexes not showing pictures of the celebrity, however, this decision was on appeal until 2014 when the Supreme Court of Argentina finally ruled in favour of the websites. Virginia Simari, the judge in favour of De Cunha, stated that people have the right to control their image and avert others from “capturing, reproducing, broadcasting, or publishing one’s image without permission” This option enables a criminal who has completed their sentence and undergone rehabilitation to object to the disclosure of the details surrounding their conviction and incarceration. As a result, the Data Protection Directive, 1995 of the European Union underwent an advanced development of the declared right to change and integrate itself. According to the aforementioned guidelines, anyone could ask the relevant authorities to erase some data that was publicly accessible on the internet “because of the incomplete or erroneous character of the information”
Around 20 years later, the European Court of Justice ruled in the famous case of “Google Spain SL and Google Inc. v. Agencia Espaola de Protección de Datos (AEPD) and Mario Costeja González” that EU citizens have the right to be forgotten and that their right to privacy outweighs the need for free data movement within the EU. This ruling was requested across the EU, and it was as a direct result of this decision that the aforementioned right found its way paved into thein GDP Regulations, 2016.
Though the ‘Right to be Forgotten’ is not mentioned in the Sensitive Personal Data Information (SPDI) Rules, there are some judicial precedents in India on the subject. For the first time, the Orissa High Court, an Indian constitutional court, brought to the forefront the issue of an individual’s protection of privacy online, endorsing for the regulatory oversight of Article 21 of the Indian Constitution relating to Right to Life and Personal Liberty as a remedy to victims whose conciliatory information was available online.
In Sri Vasunathan v. Registrar General, the Karnataka High Court explicitly recognised the “right to be forgotten,” albeit in a limited sense. Further Zulfiqar Ahman Khan v/s Quintillion Business Media Pvt. Ltd. and Ors., the Delhi High Court recognised the plaintiff’s ‘Right to be Forgotten’ in an order dated 09.05.2019.
The right to be forgotten is rooted in Articles 19 and 21 of the Indian Constitution, which does not provide it as an unfettered and unlimited right and thus subject to restrictions such as other fundamental rights, contractual responsibility, public interest and health, archiving, researching, and defending legal claims. Kaul J. ruled that people’s past mistakes should not be included as a weapon against them using their digital footprint and that people should be allowed to limit the publication of data about them. The Court relied on the 2016 European Union Regulation (Article 17), which established the right to be forgotten.
Authored By
Dr. Rituparna Bhattacharjee
Assistant Professor(Sel.Gr)
Department of SOL,
The NorthCap University Gurugram
LinkedIn: www.linkedin.com/in/rituparnabh
Research Interests: Jurisprudence; Constitutional Law; Administrative Law; Law and Psychology