Is The ‘Right To Be Forgotten’ a Fundamental Right?

18 Jan 2022  Read 1868 Views

Almost all of us have had some embarrassing moments in our lives and we all have made mistakes that we are not very proud of. Many of us learn and change. But what if the world refuses to accept our evolution. This is what the concept of Right to be Forgotten is all about. 

The dispute regarding this concept has been blazing on from a very long time, and has witnessed a variety of landmark judgments and legislations in many parts of the world. 

Did you know in 2021, reality TV star Ashutosh Kaushik - who won the Bigg Boss season in 2008 and MTV Roadies moved the Delhi high court seeking removal of all posts, videos, articles from the internet which provided information regarding his arrest in 2009 due to drunk driving and about his 2013 altercation at a Mumbai café by invoking his ‘Right to privacy and ‘Right to be forgotten’.

What is the Right to be Forgotten?

The Right to be forgotten is one’s right to remove personal information like photographs, videos, and other identifying information from publicly available sources such as internet searches and other online directories under certain circumstances. 

This right has its roots in the French right of oblivion and the first case on this right was Mario Costeja Gonzalez vs. Google Spain (2014). In this case, the European Court of Justice ruled in favor of Mr. Mario and directed Google to remove inadequate, irrelevant or no longer relevant data from its search results on the request from a member of the public. Thus, the European Court observed the Right to privacy to be above the economic interest and the Right to information of the public.

In India, the question of the Right to be forgotten first came up before the judiciary in the case of Dharamraj Bhanushankar Dave v. State of Gujarat & Ors (2015) before the Gujarat High Court. In this case, the petitioner had been accused of the offences of criminal conspiracy, murder and kidnapping and was acquitted by the Court and thus, he wanted that respondent should be barred from publishing the non-reportable judgment on the internet; since, it could be detrimental to the petitioner’s personal and professional life. However, the court did not recognize the ‘Right to be forgotten’ to exist in India.

Once gain in the case of Jorawar Singh Mundy vs. Union of India (W.P. (C) 3918/ 2020) ‘Right to be forgotten’ was claimed in which the Single Judge bench comprising Justice Pratibha M. Singh held that, on one hand there is petitioners' right to privacy and on the other hand public’s Right to Information & Preservation of transparency in judicial records. However, the court recognized the petitioner's right to privacy above all and held that it had been infringed and directed the respondents to remove access to the judgment from their portals.

Is ‘Right to be forgotten’ a part of ‘Right to privacy’?

The Indian law does not statutorily recognize the right to be forgotten as clearly as it's provided under EU Data Protection Laws; however, the Supreme Court in the celebrated K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1 case, while regarding a citizen's right to be forgotten commented that “If we were to recognize a similar right, it would only mean that an individual who is no longer desirous of his data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest” 

The Right to be forgotten falls under the scope of an individual’s Right to privacy, which is a fundamental right under Article 21 of the Constitution of India. But, the position on whether the right to be forgotten is a fundamental right in India is still not very clear. However, this right can become a statutory right due to the B.N Shri Krishna committee’s recommendation under the Personal Data Protection Bill, 2019; which is yet to be passed by Parliament; as, Section 20 under Chapter V of this draft bill titled “Rights of Data Principal” expressly recognizes this right.

Some prominent cases on ‘Right to be forgotten’

I. {Name Redacted} v. The Registrar General, High Court of Karnataka (2017)

The Karnataka High Court upheld a woman’s 'Right to be forgotten, as her father’s writ petition stated that he did not want her name to appear on search engines in association with digital records of the high court of a previous criminal case.

II. Rout vs. State of Orissa (2020)

The Orissa High Court reaffirmed the need for the legislative recognition of the right to be forgotten and remarked that the right to be forgotten is an integral part of the right to privacy and held that in cases where a victim’s right to privacy has been violated, the victim or the prosecution may approach a Court to seek appropriate orders and have the content removed from public platforms.

III. Zulfiqar Ahmad Khan v. Quintillion Business Media (P) Ltd. (2019)

The Delhi High Court observed the ‘Right to be forgotten’ and the ‘Right to be left alone’ as an integral part of an individual’s existence.

Conclusion

As of July 2021, the Supreme Court of India has not dealt with the case related to the Right to be forgotten and only various High Courts have heard such cases and most of them recognized the right to be forgotten as an integral facet of the right to privacy. Although, the Right to be forgotten is not expressly recognized as a fundamental right in India by the Supreme Court; however, with the passing of the Personal Data Protection Bill, 2019, it will become a statutory right and a person will have greater freedom regarding the use of one's personal information on the internet.

About the Author: Apoorva Goel | 2 Post(s)

Apoorva is an LL.M student from HNLU, Raipur, with core interests in Constitutional law, Criminal law and IPR.  She has an interest in simplifying the Law through her legal research and writing. She graduated with B.A (H) Economics from Dyal Singh College, DU; after that, she pursued LL.B from Bharati Vidyapeeth University. She also holds a PG Diploma in IPR from the Indian Society of International Law.

Liked What You Just Read? Share this Post:

Finology Blog / Constitutional Developments / Is The ‘Right To Be Forgotten’ a Fundamental Right?

Wanna Share your Views on this? Comment here: