Everyone has experienced embarrassing situations or made decisions they are not proud of. Learning from such incidents and experiences, they have become better human beings. The problem arises when the society around us refuses to accept these evolutions and continues to remember the individual for their past experiences. This has forced people to openly discuss the ‘Right to be forgotten” in light of the controversies surrounding the Digital Personal Data Protection Bill, 2022.
Dr. Ishwarprasad Gilda, a world-renowned doctor who was the first person to raise the alarm against AIDS in India in 1985 and started India’s first AIDS clinic in 1986 at a government-run hospital in Mumbai, was accused of offenses under section 304A for causing death by negligence, cheating under section 417 and personating a public servant under section 170 of Indian Penal Code, 1860. The doctor was accused of illegally procuring medicines abroad, administering them to HIV patients in Inda, and ‘manhandling’ his patients. When one of his patients passed away, Dr. Ishwarprasad contended to be wrongfully arrested on April 23, 1999, and received bail on May 11, 1999. Based on a trial court judgment passed on August 4, 2009, he reiterated that no evidence was against him proving his involvement in any such illegality.
Dr. Ishwarprasad approached the Delhi High Court with his plea for the ‘right to be forgotten’ requesting the removal of all news and journal articles published on various online platforms like Google, the Press Information Bureau, and the Press Council of India. In his plea, he contested that such information was ‘irrelevant’ and was causing ‘grave injury’ to his reputation and sabotaging his dignity.
Understanding the right to be forgotten and the related law
The right to be forgotten is the right where the individual is allowed to remove any private information of him such as videos, photographs, or any detail which he does not wish to be on any public platform to not allow its access to the public in general. Any such information which can show up through any search engine, such as Google in this case, should be removed permanently to avoid any harm or prejudice to one's reputation.
Section 43A of the Information Technology Act, 2000, states that any organization with sensitive personal information or data may be obligated to pay damages to the affected person if they fail to maintain appropriate security.
The IT Rule 2021 does not include this right; however, it does lay down the procedure for filing complaints with the designated Grievance Officer in case exposing any personal information or complaint is removed from the internet.
On December 11th, 2019, the Ministry of Electronics and Information Technology introduced the Personal Data Protection Bill in the Lok Sabha, which focuses on processing digital personal data within India, where such data is collected online or offline and digitized. It will also apply to such processing outside India if it is for offering goods or services or profiling individuals in India. It gives priority to the individual to protect the data and privacy, a fundamental right. The right to be forgotten, included in the draft, reinforces the primacy of the data controller’s privacy rights. Under this, the data holder can request the data fiduciary to remove their data when it stops serving any fruitful purpose or is no longer needed.
The Court’s so far
Since there is no express law regarding the ‘right to be forgotten,’ particularly in India, the courts have repeatedly held it as an individual’s right under Article 21 (as the right to privacy). In 2017, the apex court with a nine-judge bench, including CJI Chandrachud in K.S.Puttaswamy vs. Union of India, referred to the European Union Regulation of 2016, which recognizes the ‘right to be forgotten as an individual’s right, allowing him to remove personal information from any platform which he does not desires be available for any public access.
The reasonable restriction imposed on such a right could be on the grounds of the “right to freedom of expression and information,” “for compliance with legal obligations,” or for the performance of tasks in the public interest or on “grounds of public interest in the area of public health” or “scientific or historical research purposes or statistical purposes, or for the establishment” and “exercise or defense of legal claims.”
In “Jorawer Singh Mundy vs. Union of India,” an American citizen approached the Delhi High Court in 2021 seeking the removal of all publically available records regarding a case registered against him under the Narcotics Drugs and Psychotropic Substance Act, 1985. In his plea, he argued that the trial court acquitted him in 2011. Yet, he has been unable to find a job in the United States despite having an excellent educational background due to the details available about the matter on Google, which can be easily searched. The court then directed “IndianKanoon” to remove the content.
In” Zulfiqar Ahman Khan vs. Quintillion Businessman Media Pvt. Ltd,” the Delhi High Court recognized that a person‘s personal and professional life could be affected and destroyed if appropriate relief is not granted against the publication or republication of data. The court also stated that the ‘Right to be Forgotten’ and the 'Right to be Left Alone' are inherent to the Right to privacy.
Though no formal legislation scrutinizes the need for the Right to be Forgotten, time in by, judicial precedents have shown their acceptance of it as an integral part of the Right to Privacy. In light of the same, the government has initiated a draft bill, ‘Personal Data Protection Bill, 2022’, to give citizens more authority over their data. It is vital that along with such legislation, there has to be a proper mechanism that ensures that such right of individuals is an absolute one and is guarded.
Today, much information about individuals is available in the different public spheres, which can be accessed for various purposes without needing the individual's consent. But if access to all the information is forbidden, this will also disrupt the authenticity of records.
Hence Right to forget has to function in harmony with the Right to Information and the Freedom of Expression, with the help of proper guidelines and fast tract redressal mechanisms to individuals against information in public.