India needs law to safeguard right to be forgotten

Sunilchandra Dal
Sunday, 2 July 2017

Google has stated that as of June 2017, it has removed 7,62,960 URLs in response to right to be forgotten requests.

Netizens sometimes complain about embarrassing records about themselves that come to the fore through search engines. These include personal information recorded years ago, which is today irrelevant or misleading, or shows one in bad light. The ‘right to be forgotten’ allows netizens to demand deletion of links to these pages in search engines.

This right is in force in the European Union. In 2004, the European Court of Justice determined that Google is a ‘data controller’ and hence, has a responsibility to make sure that the data it holds about people obeys the data protection laws: It must not be irrelevant, out of date, inaccurate or an invasion of privacy.  

According to The Guardian, Google in 2014 received requests under the right to be forgotten at 10,000 per day, but later it slowed down to around 1,000 per day. Meanwhile, Google has stated that as of June 2017, it has removed 7,62,960 URLs in response to right to be forgotten requests.

Should the right to be forgotten be available in India? Netizens, whether in Europe or India, face similar situations where this right could apply. Some netizens in India have moved courts seeking the right to be forgotten. So far, the Kerala High Court and Karnataka High Court have ruled in favour of the right to be forgotten and the Gujarat High Court against it.

In Gujarat, the petitioner had been charged with criminal offences, but acquitted by both the Sessions Court and the High Court. This judgment was published by indiankanoon.org. The petitioner wanted to migrate to Australia. So he moved the High Court to restrain the online publishing of the judgment. The court rejected the petition, holding that the petitioner’s rights were not violated by publishing it online. However, we note that the petitioner did not base his claim on the right to be forgotten and hence, the court did not consider it.

This year, the Kerala High Court passed an interim order asking indiankanoon.org to remove the name and personal information of a rape victim from a Kerala High Court judgment, which the site had uploaded. The woman had filed a petition seeking the material disclosing the identity of the petitioner as a rape victim in websites be removed.

The Karnataka High Court has upheld the right to be forgotten in a case involving a woman who originally went to court to get a marriage certificate annulled. The two parties later came to an agreement. The woman’s father then wanted her name to be removed from search engines regarding criminal cases in the High Court. The Karnataka High Court approved the father’s request, stating that she had a right to be forgotten.

Justice Anand Bypareddy stated: “This is in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person
concerned.”

The law on right to be forgotten is being developed in India by the judiciary and it is inevitable in a fast changing digital world. However, not many netizens can afford the costs of filing a High Court petition. The Central government should enact a law in which there is a simple remedy of filling up a form and submitting it to the search engine or a designated authority, with right of appeal to a higher authority. The government could invite views on the right to be forgotten from the public as a first step.

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