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The Right to be Forgotten: Data Privacy Laws in India

In 2010 Mario Costeja González, filed a complaint with the Agencia Española de Protección de Datos (AEDP), the Spanish Data Protection Agency, against a local newspaper and Google Spain for claims relating to auction notices mentioning González published in 1998.
The notices concerned real estate auctions held to secure repayment of González’s social security debts. González contended that these pages were no longer necessary because “the attachment proceedings concerning him had been fully resolved for several numbers of years and that reference to them was now entirely irrelevant.” He sought to have the articles in the newspaper, as well as the links to them on Google, removed since they were no longer relevant and could tarnish his social standing and affect employment opportunities.
The AEDP dismissed the plaintiff’s claims against the newspaper but allowed those against Google.

In an appeal by Google, the European courts and the European Court of Justice held that the operators of search engines fall under the definition of ‘controller’ under Article 2(d) of the Directives. Further, the courts also confirmed the individual’s ‘Right to be Forgotten’ if the personal data concerning him/ her is no longer needed for which it was collected.

This case led to the creation of a new right: The Right to be Forgotten. It falls under data protection laws and is imperative when everyone has easy access to unfiltered information. It is the right to have private information about a person be removed from Internet searches and other directories under some circumstances. It stems from the need for individuals to have certain information about themselves erased for fear of being stigmatized or associated with an action done in the past, which might have no relevance with their present life.
The B.N. Srikrishna Committee report has laid significant emphasis on obtaining the consent of an individual to process and use personal data. The committee said consent must be “informed”, “specific” and “clear”, and needs to be capable of being withdrawn as easily as it was given. The draft Personal Data Protection Bill, 2018, has a section on the Right to be Forgotten. Section 27 of the bill has listed out three scenarios in which an individual will have the “right to restrict or prevent continuing disclosure of personal data” or the right to be forgotten, in a sense.
For exercising the said right, the ‘data principal’ shall have to file an application form before the Adjudicating Officer appointed under Section 68. The power to make rules, regarding how the application is to be filed, vests with the Central Government.
The ‘Right to be Forgotten’ under PDP Bill can only be exercised if the Adjudicating Officer satisfies that the said right overrides the Right to Freedom of Speech & Expression and the Right to Information of other citizens of India. The factors to be taken into account by the Adjudicating Officer before making any such order are the sensitivity of personal data, data principal’s role in the public sphere, relevance of personal data to the general public etc.
In a recent case, Justice Anand Byrareddy of the Karnataka High Court quietly delivered a landmark judgement in which he ruled that a woman whose name featured in a criminal complaint order filed during a marital dispute had the right to be forgotten.
The woman’s father, the petitioner, argued that an earlier court order, which revealed his daughter’s name in the case title and elsewhere, could lead to friction with her husband with whom she had since reconciled. However, he delivered that her name shall not be removed from the High Court website.
The Gujarat High Court delivered a contrast judgement in Dharamraj Bhanushankar Dave v/s State of Gujarat & Ors. In this case, the petitioner through a writ petition under Article 226 of the Constitution, prayed before the court for restricting the disclosure of a Hon’ble court’s judgment published by the respondent on the internet. The case of the petitioner was that initially, he was an accused of offences like criminal conspiracy, murder etc. in a complaint filed before the Jamnagar Police Station. Though the said judgment was non-reportable, the respondent published it on the internet which is hampering the petitioner’s personal and professional life.
Referring to its rules, the Gujarat High Court held that copies of the judgment of the High Court can be given to any party by the order of Assistant Registrar.
Further, the court also held that the petitioner has failed to prove any violation of Article 21 of the Constitution and in such way, the Gujarat High Court did not recognize the ‘Right to be Forgotten’.

India needs to amend its Data Privacy Laws, and this needs to be done soon. Citizens should be able to monitor information about themselves and who has access to it. We should be able to have personal data about ourselves taken down without having to approach a court. Going through Courts is a cumbersome process and each one might not have required resources for the same. A standard method of writing to the concerned entity to redact certain parts should be established for ease of citizens. For the cases that are published for academic purposes, the permission of the petitioner and respondent must be taken before broadcasting personal details; censorship of name and address is another viable option.
Its high time that we realise that the privacy and safety of citizens are above the profits of companies and news houses. Privacy laws need to be tightened to the extent that third parties don’t have ingress to case information, especially for civil cases. India needs a robust data protection regime so strict action can be taken in case the privacy of citizens is violated. The urgency of policy reform can be faltering when we consider all the factors as discussed above. Data Protection Committee Report has made a point that granting a right to erasure under ‘Right to be Forgotten’ can hamper the other rights of the people of India like the right to know, freedom of press etc. which is to an extent is a correct position in a country like India. Courts all over the country have different opinions about this.

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